LAW FOR ALL

Friday, January 21, 2022

filing of the writ petitions by the borrowers before the High Court under Article 226 of 23 the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured 24 creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed.

filing of the writ petitions by the borrowers before the High Court under Article 226 of 23 the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured 24 creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 257-259 OF 2022

Phoenix ARC Private Limited …Appellant(s)

Versus

Vishwa Bharati Vidya Mandir & Ors. …Respondent(s)

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned order dated

27.03.2018 passed by the High Court of Karnataka at Bengaluru in Writ

Petition Nos. 35564-35566 of 2015 by which the High Court has

entertained the aforesaid writ petitions under Article 226 of the

Constitution of India against the appellant, an Assets Reconstructing

Company and has passed an interim order directing for maintaining

status quo with regard to SARFAESI action (possession of the secured

assets), the original respondent – the Assets Reconstructing Company

(ARC) has preferred the present appeals.

2. That the respondent No.1 herein Vishwa Bharati Vidya Mandir is

running educational institutions and is a Society registered under the

Karnataka Societies Registration Act, 1960 which had availed credit

facilities to the tune of Rs.105,60,84,000/- (Rupees One Hundred Five

Crores Sixty Lacs and Eighty Four Thousand Only) from Saraswat Cooperative Bank Limited. That similarly, St. Ann's Education Society had

also availed credit facilities to the tune of Rs.20,05,00,000/- (Rupees

Twenty Crores and Five Lacs Only) from the aforesaid Bank.

2.1 It appears that in order to secure the due repayment of the

aforesaid credit facilities, various loans / security documents were

executed by the respective respondents, including personal guarantees

in favour of the bank. The respondents also created an equitable

mortgage by way of deposit of title deeds over the immovable properties

with respect to the mortgaged properties. It appears that on account of

defaults committed by the borrowers / respondents in repayment of the

outstanding dues, in the month of April, 2013, the account of the

borrowers / respondents were classified as a “Nonperforming Asset”

(NPA) by the Bank. As the borrowers / respondents failed and neglected

to repay the outstanding dues of the Bank, the Bank issued a notice

dated 01.06.2013 under Section 13(2) of the Securitization and

Reconstruction of Financial Assets and Enforcement of Securities

Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”). It

appears that in the month of March, 2014, the NPA account of the

borrowers / respondents with respect to the credit facilities availed by

them was assigned by the Bank in favour of the appellant – Phoenix

ARC Private Limited vide registered Assignment Agreement dated

28.03.2014.

2.2 Pursuant to the assignment of the NPA account in favour of the

appellant, the borrowers approached the appellant with a request for

restructuring the repayment of outstanding dues. A Letter of Acceptance

dated 27.02.2015 was executed between the parties, wherein the

borrowers / respondents acknowledged and admitted the liability to

repay the entire outstanding dues. However, the borrowers failed to

repay the dues as per the Letter of Acceptance.

2.3 Since the borrowers again committed defaults in payment of the

outstanding dues, the appellant – Phoenix ARC Private Limited issued a

letter dated 13.08.2015 intimating the borrowers that since despite

issuance of 13(2) notice dated 01.06.2013 and the subsequent

execution of the Letter of Acceptance dated 27.02.2015, the borrowers

had failed to repay the outstanding dues, therefore, the appellant would

be proceeding to take possession of the mortgaged properties after

expiry of 15 days from the date of the said letter.

2.4 Against the aforesaid communication/letter dated 13.08.2015, the

borrowers / respondents herein filed the writ petitions before the High

Court on the ground that the communication/letter dated 13.08.2015 is a

possession notice under Section 13(4) of the SARFAESI Act, which is

against the Security Interest (Enforcement) Rules, 2002.

2.5 It was the case on behalf of the original writ petitioners that the

said possession notice under Section 13(4) of the SARFAESI Act is in

violation of Rule 8(1) of the Security Interest (Enforcement) Rules, 2002

(hereinafter referred to as “Rules, 2002”) and without issuance of the

possession notice under Rule 8(1) and without publication of possession

notice in two leading newspapers as required under Rule 8(2). The High

Court passed an ex-parte ad-interim order dated 26.08.2015 directing

status quo to be maintained with regard to possession of the mortgaged

properties subject to the borrowers making a payment of Rs. 1 crore with

the appellant – Phoenix.

2.6 The petition was opposed by the appellant by filing statement of

objections to the writ petitions contending, inter alia, that the letter dated

13.08.2015 as such cannot be said to be taking a measure under

Section 13(4) of the SARFAESI Act and that it was only a proposed

action/measure to be taken by the appellant. It was also submitted that

the writ petitions are not maintainable. That the appellants filed an

application being I.A. No. 01 of 2016 for vacation of the ex-parte adinterim order dated 26.08.2015. However, instead of deciding the

application for vacating the interim order, the High Court extended the

interim order on 28.02.2017 on the condition that the borrowers shall

deposit a further sum of Rs.1 crore. Simultaneously, the appellant also

filed two separate original applications against the borrowers before the

Debt Recovery Tribunal, Bangalore for recovery of the outstanding dues.

Thereafter, the High Court again vide order dated 27.03.2018 extended

the earlier ex-parte interim-order dated 26.08.2015 on condition that the

borrowers deposit a further sum of Rs. 1 crore.

2.7 Feeling aggrieved and dissatisfied with the aforesaid interim orders

/ extension of the interim orders and entertaining the writ petitions, the

appellant – Phoenix ARC Private Limited, the original respondent has

preferred the present appeals.

3. Shri V. Giri, learned Senior Advocate has appeared on behalf of

the respective appellants and Shri Basavaprabhu S. Patil, learned

Senior Advocate has appeared on behalf of the original writ petitioners –

borrowers.

4. Shri V. Giri, learned Senior Advocate appearing on behalf of the

appellant(s) has vehemently submitted that in the present case the

borrowers are liable to pay to the appellant – ARC / secured creditor an

amount of Rs.117,31,68,487/-. It is submitted that for recovery of the

amount due and payable, initially in the year 2003, notice under Section

13(2) of the SARFAESI Act was issued and therefore the proceedings

under the SARFAESI Act commenced. It is submitted that thereafter

despite the Letter of Acceptance dated 27.02.2015 admitting the dues

and agreeing to make the payment due and payable, the borrowers

failed to repay the amount due and payable, the appellant proposed to

proceed further with the proceedings under the SARFAESI Act and

therefore vide communication dated 13.08.2015, the borrowers were

called upon to make the payment within 15 days failing which it was

proposed to take further steps under the provisions of the SARFAESI

Act. It is submitted that, technically speaking, at that stage

communication dated 13.08.2015 cannot be said to be notice under

Section 13(4) of the SARFAESI Act. Despite the above and treating

and/or considering the communication dated 13.08.2015 as possession

notice under Section 13(4) of the SARFAESI Act, the borrowers filed the

writ petitions before the High Court against communication dated

13.08.2015. It is submitted that unfortunately the High Court has

entertained the aforesaid writ petitions though not maintainable against a

private party like the appellant – ARC and has granted an ex-parte adinterim order, which has been extended from time to time directing to

maintain status quo with respect to the possession of the mortgaged

properties on payment of meager amount of Rs. 1 crore (in all Rs. 3

crores only) against the total dues of Rs.117 crores approximately.

4.1 It is submitted that as such the writ petitions against the private

party – ARC and that too against the communication proposing to take

action under the SARFAESI Act would not be maintainable at all, and,

therefore, the High Court ought not to have entertained such writ

petitions and ought not to have granted the interim protection to the

borrowers, who have failed to repay the amount due and payable, which

comes to approximately Rs.117 crores.

4.2 It is further submitted by Shri Giri, learned Senior Advocate

appearing on behalf of the appellant – ARC that assuming that the

communication dated 13.08.2015 is treated as an action under Section

13(4) of the SARFAESI Act, in that case also, the only remedy available

to the borrowers was by way of an appeal under Section 17 of the

SARFAESI Act. It is submitted that under no circumstances, the writ

petitions would be maintainable and that too against the private ARC.

4.3 It is submitted that the High Court has not at all appreciated that as

such there was no occasion to interfere in exercise of the powers under

Article 226 of the Constitution of India against a private party and a nonState actor like the appellant – Phoenix ARC. It is submitted that the writ

petitions under Article 226 of the Constitution of India for the relief

sought in the writ petitions shall not be maintainable and that too against

a private party. It is submitted that, however, the Hon’ble High Court has

not only entertained the writ petitions but also passed an ex-parte adinterim order dated 26.08.2015, which has been continued from time to

time directing to maintain the status quo with regard to the SARFAESI

action (possession of the secured assets). It is submitted that this

effectively resulted in staying of all further proceedings under the

SARFAESI Act. It is submitted that despite the application(s) for

vacating the ex-parte ad-interim relief, the High Court extended the exparte interim order dated 26.08.2015 on condition that the borrowers pay

further sum of Rs.1 crore only.

4.4 It is submitted that even in the subsequent order dated

27.03.2018, though the High Court observed that “though the learned

counsel for the petitioners seeks to refer the nature of the claim and

contend that the demand as made would not be justified, the said

consideration in a writ petition of the present nature would not arise”, still

the High Court has extended the ex-parte interim order dated

26.08.2015 by observing that the “petitioner is required to settle the

matter with the respondents”. It is submitted that the High Court is not

at all justified firstly, in entertaining the writ petitions under Article 226 of

the Constitution of India for the relief sought in the main writ petitions

and that too against a private party and, more particularly, when against

any action under the SARFAESI Act, an appeal under Section 17 of the

SARFAESI Act would be maintainable and is required to be filed.

4.5 Shri Giri, learned Senior Advocate appearing on behalf of the

appellant(s) has relied upon the following decisions in support of the

submission that the writ petitions before the High Court are not

maintainable:-

United Bank of India Vs. Satyawati Tondon & Ors., (2010) 8

SCC 110; Kanaiyalal Lalchand Sachdev & Ors. Vs. State of

Maharashtra & Ors., (2011) 2 SCC 782; General Manager, Sri

Siddeshwara Cooperative Bank Limited & Anr. Vs. Ikbal &

Ors., (2013) 10 SCC 83; Agarwal Tracom Private Limited Vs.

Punjab National Bank & Ors., (2018) 1 SCC 626; Authorized

Officer, State Bank of Travancore & Anr. Vs. Mathew K.C.,

(2018) 3 SCC 85; and Radha Krishnan Industries Vs. State of

Himachal Pradesh & Ors., (2021) 6 SCC 771.

4.6 Making the aforesaid submissions and relying upon the above

decisions, it is prayed to set aside the impugned order dated 27.03.2018

and also to dismiss the writ petitions filed before the High Court as being

non-maintainable.

5. Shri Basavaprabhu S. Patil, learned Senior Advocate appearing on

behalf of the original borrowers has vehemently submitted that the

present appeals are against the ad interim order/interim order passed by

the High Court and the main writ petitions are pending before the High

Court. It is submitted that pursuant to the earlier order passed by this

Court dated 06.08.2018, the impugned interim order passed by the High

Court has been stayed. It is therefore submitted that when the main writ

petitions are pending before the High Court, the present appeals may

not be further entertained. It is submitted that despite the fact that there

is a stay of operation of the impugned order passed by the High Court

since 06.08.2018, thereafter no further steps have been taken by the

appellant against the borrowers under the provisions of the SARFAESI

Act.

5.1 Now, so far as the maintainability of the writ petition against the

Assets Reconstruction Company (ARC) is concerned, it is submitted that

the writ petition is filed against the ARC complaining of infraction of Rule

8. It is submitted that the said rule imposes a statutory duty on the

secured creditor - the ARC to act fairly while dealing with the security so

as to secure the interest of the borrower as well as public at large

(depositors). In support of aforesaid submission, reliance is placed on

the decision of this Court in the case of J. Rajiv Subramaniyan and

Anr. Vs. Pandiyas and Ors., (2014) 5 SCC 651. It is therefore

submitted that as in the present case as the ARC has not performed the

statutory duty cast upon it and there is a contravention of the statutory

duty imposed under the Security Interest (Enforcement) Rules, 2002, a

writ would lie against ARC against such an illegal action.

5.2 Shri Patil, learned Senior Advocate appearing on behalf of the

borrowers has also relied upon the decisions of this Court in the case of

Praga Tools Corporation Vs. Shri C.A. Imanual and Ors., (1969) 1

SCC 585 and Ramesh Ahluwalia Vs. State of Punjab and Ors., (2012)

12 SCC 331 in support of his submission that even against a purely

private body but performing public functions, which are normally

expected to be performed by the State authorities, a writ would be

maintainable.

5.3 Now, in so far as the submission on behalf of the appellant that

assuming that a communication dated 13.08.2015 can be said to be a

SARFAESI action under Section 13(4) of the Act, the borrowers had to

prefer an appeal under Section 17 and, therefore, the writ petition would

not be maintainable and/or is required to be entertained, it is vehemently

submitted by Shri Patil, learned Senior Advocate appearing on behalf of

the borrowers that on the ground of alternative remedy only, the writ

petition would not be barred.

5.4 It is submitted that Section 13 of the SARFAESI Act provides for

enforcement of security interest and sub-section 4(a) of Section 13

provides that in case a borrower fails to discharge his liability within the

period specified under sub-section (2) of Section 13, the secured creditor

may take possession of the secured assets of the borrower. It is

submitted that Rule 8(1) of the Rules, 2002 mandates that where the

secured assets is an immovable property, the authorized officer of the

secured creditor shall take or cause to be taken possession, by

delivering the possession notice prepared as nearly as possible in

Appendix – IV of the said Rules, to the borrower and by affixing the

possession notice on the outer door or at the conspicuous space of the

property. It is submitted that Rule 8(2) of the said Rules also mandates

that the said possession notice be published as soon as possible, but in

any case not later than 7 days from the date of taking possession, in two

leading newspapers, one in vernacular language having sufficient

circulation in that locality by the authorized officer.

5.5 It is submitted that in the instant case, it is not the case of the

appellant that it took any measure in terms of Section 13(4) of the

SARFAESI Act. It is therefore submitted that the remedy under Section

17 of the SARFAESI Act, which would be against any measure referred

to in sub-section (4) of Section 13 of the SARFAESI Act to file an

application to the Debts Recovery Tribunal is not available to the

borrowers in the instant case. It is further submitted that there is no

compliance with Rule 8(1) and 8(2) of the Rules, 2002. It is submitted

that as held by this Court in the case of Mathew Varghese Vs. M.

Amritha Kumar and Ors., (2014) 5 SCC 610 on a detailed analysis of

Rules 8 and 9 that any sale effected without complying with the same

would be unconstitutional and, therefore, null and void. It is submitted

therefore that the High Court has rightly entertained the writ petitions.

5.6 Making the above submissions and relying upon the decision of

this Court in the case of J. Rajiv Subramaniyan and Anr. (supra), it is

urged that the High Court has not committed any error in entertaining the

writ petitions.

5.7 It is further submitted by Shri Patil, learned Senior Advocate

appearing on behalf of the respondents – borrowers that even otherwise

considering the fact that the present appeals are against the interim

order granted by the High Court, the same may not be entertained.

Reliance is also placed on the decision of this Court in the case of

United Commercial Bank Vs. Bank of India and Ors., (1981) 2 SCC

766.

5.8 It is further submitted that even otherwise in the present case,

subsequently, the appellant has taken recourse under Section 19 of the

Recovery of Debts due to Banks and Financial Institutions Act, 1993 by

filing O.A. No. 715 of 2017 before the Debts Recovery Tribunal,

Bengaluru and the said Tribunal has passed an interim order directing

the borrowers to deposit the fee collected / to be collected by all

educational institutions run by the Society – borrower for academic year

2017-2018 into the Bank. It is submitted that another interim order has

been passed on 06.07.2017 restraining the borrowers from selling,

transferring, alienating or otherwise dealing with certain properties of the

borrowers/respondents. It is submitted therefore that the interest of the

appellant is fully protected and no prejudice would be caused to the

appellant if the writ petitions are finally considered and disposed of by

the High Court on merits.

5.9 Making the above submissions, it is prayed to dismiss the present

appeals.

6. We have heard the learned counsel for the respective parties at

length.

7. At the outset, it is required to be noted that in the present case, the

respondents – borrowers whose accounts have been declared as NPA in

the year 2013 have filed the writ petitions before the High Court

challenging the communication dated 13.08.2015 purporting it to be a

notice under Section 13(4) of the SARFAESI Act. It is required to be

noted that as per the appellant – assignor approximately Rs.117 crores

is due and payable to the Bank. While passing the ex-parte interim

order on 26.08.2015 and while entertaining the writ petitions against the

communication dated 13.08.2015, the High Court has directed to

maintain status quo with respect to the possession of the secured

properties on condition that the borrowers deposit Rs. 1 crore only.

Despite the fact that subsequently an application for vacating the exparte ad-interim order has been filed in the year 2016, the application for

vacating the interim order has not been decided and disposed of. On

the contrary, the High Court thereafter has further extended the ex-parte

ad-interim order dated 26.08.2015 on condition that the borrowers

should deposit a further sum of Rs. 1 crore. Thus, in all the borrowers

are directed to deposit Rs. 3 crores only against the dues of

approximately Rs.117 crores.

7.1 It is the case on behalf of the appellant that the writ petitions

against the communication dated 13.08.2015 proposing to take further

action under Section 13(4) of the SARFAESI Act and that too against a

private Assets Reconstructing Company (ARC) shall not be

maintainable. It is also the case on behalf of the appellant that

assuming that the communication dated 13.08.2015 can be said to be a

notice under Section 13(4) of the SARFAESI Act, in view of the

alternative statutory remedy available by way of appeal under Section 17

of the SARFAESI Act, the High Court ought not to have entertained the

writ petitions.

7.2 While considering the issue regarding the maintainability of and/or

entertainability of the writ petitions by the High Court in the instant case,

a few decisions of this Court relied upon by the learned Senior Advocate

appearing on behalf of the appellant – ARC are required to be referred

to.

7.3 In the case of Satyawati Tondon & Ors. (supra), it was observed

and held by this Court that the remedies available to an aggrieved

person against the action taken under section 13(4) or Section 14 of the

SARFAESI Act, by way of appeal under Section 17, can be said to be

both expeditious and effective. On maintainability of or entertainability of

a writ petition under Article 226 of the Constitution of India, in a case

where the effective remedy is available to the aggrieved person, it is

observed and held in the said decision in paragraphs 43 to 46 as under:-

“43. Unfortunately, the High Court overlooked the settled

law that the High Court will ordinarily not entertain a

petition under Article 226 of the Constitution if an

effective remedy is available to the aggrieved person and

that this rule applies with greater rigour in matters

involving recovery of taxes, cess, fees, other types of

public money and the dues of banks and other financial

institutions. In our view, while dealing with the petitions

involving challenge to the action taken for recovery of the

public dues, etc. the High Court must keep in mind that

the legislations enacted by Parliament and State

Legislatures for recovery of such dues are a code unto

themselves inasmuch as they not only contain

comprehensive procedure for recovery of the dues but

also envisage constitution of quasi-judicial bodies for

redressal of the grievance of any aggrieved person.

Therefore, in all such cases, the High Court must insist

that before availing remedy under Article 226 of the

Constitution, a person must exhaust the remedies

available under the relevant statute.

44. While expressing the aforesaid view, we are

conscious that the powers conferred upon the High Court

under Article 226 of the Constitution to issue to any

person or authority, including in appropriate cases, any

Government, directions, orders or writs including the five

prerogative writs for the enforcement of any of the rights

conferred by Part III or for any other purpose are very

wide and there is no express limitation on exercise of

that power but, at the same time, we cannot be oblivious

of the rules of self-imposed restraint evolved by this

Court, which every High Court is bound to keep in view

while exercising power under Article 226 of the

Constitution.

45. It is true that the rule of exhaustion of alternative

remedy is a rule of discretion and not one of compulsion,

but it is difficult to fathom any reason why the High Court

should entertain a petition filed under Article 226 of the

Constitution and pass interim order ignoring the fact that

the petitioner can avail effective alternative remedy by

filing application, appeal, revision, etc. and the particular

legislation contains a detailed mechanism for redressal

of his grievance.

46. It must be remembered that stay of an action initiated

by the State and/or its agencies/instrumentalities for

recovery of taxes, cess, fees, etc. seriously impedes

execution of projects of public importance and disables

them from discharging their constitutional and legal

obligations towards the citizens. In cases relating to

recovery of the dues of banks, financial institutions and

secured creditors, stay granted by the High Court would

have serious adverse impact on the financial health of

such bodies/institutions, which (sic will) ultimately prove

detrimental to the economy of the nation. Therefore, the

High Court should be extremely careful and circumspect

in exercising its discretion to grant stay in such matters.

Of course, if the petitioner is able to show that its case

falls within any of the exceptions carved out in Baburam

Prakash Chandra Maheshwari v. Antarim Zila

Parishad [AIR 1969 SC 556], Whirlpool

Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]

and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2

SCC 107] and some other judgments, then the High

Court may, after considering all the relevant parameters

and public interest, pass an appropriate interim order.”

7.4 In the case of City and Industrial Development Corpn. Vs. Dosu

Aardeshir Bhiwandiwala, (2009) 1 SCC 168, it was observed by this

Court in paragraph 30 that the Court while exercising its jurisdiction

under Article 226 is duty bound to consider whether ……………(c) the

petitioner has any alternative or effective remedy for the resolution of the

dispute.”

7.5 In the case of Kanaiyalal Lalchand Sachdev and Ors. (supra)

after referring to the earlier decisions of this Court in the cases of

Sadhana Lodh Vs. National insurance Co. Ltd. and Anr., (2003) 3

SCC 524; Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6

SCC 675 and State Bank of India Vs. Allied Chemical Laboratories

and Anr., (2006) 9 SCC 252 while upholding the order passed by the

High Court dismissing the writ petition on the ground that an efficacious

remedy is available under Section 17 of the SARFAESI Act, it was

observed that ordinarily relief under Articles 226/227 of the Constitution

of India is not available if an efficacious alternative remedy is available to

any aggrieved person.

7.6 Similar view has been expressed by this Court in subsequent

decisions in the case of General Manager, Sri Siddeshwara

Cooperative Bank Limited & Anr. (supra) as well as in the case of

Agarwal Tracom Private Limited (supra).

8. Applying the law laid down by this court in the aforesaid decisions,

it is required to be considered whether, in the facts and circumstances of

the case, the High Court is justified in entertaining the writ petitions

against the communication dated 13.08.2015 and to pass the ex-parte

ad interim order virtually stalling/restricting the proceedings under the

SARFAESI Act by the creditor.

9. It is required to be noted that it is the case on behalf of the

appellant that as such the communication dated 13.08.2015 cannot be

said to be a notice under Section 13(4) of the SARFAESI Act at all.

According to the appellant, after the notice under Section 13(2) of the

SARFAESI Act was issued in the year 2013 and thereafter despite the

Letter of Acceptance dated 27.02.2015, no further amount was paid, the

appellant called upon the borrowers to make the payment within two

weeks failing which a further proceeding under Section 13(4) of the

SARFAESI Act was proposed. Thus, according to the appellant, it was a

proposed action. Therefore, the writ petitions filed against the proposed

action under Section 13(4) of the SARFAESI Act was not maintainable

and/or entertainable at all.

10. Assuming that the communication dated 13.08.2015 can be said to

be a notice under Section 13(4) of the SARFAESI Act, in that case also,

in view of the statutory remedy available under Section 17 of the

SARFAESI Act and in view of the law laid down by this Court in the

cases referred to hereinabove, the writ petitions against the notice under

Section 13(4) of the SARFAESI Act was not required to be entertained

by the High Court. Therefore, the High Court has erred in entertaining

the writ petitions against the communication dated 13.08.2015 and also

passing the ex-parte ad-interim orders directing to maintain the status

quo with respect to possession of secured properties on the condition

directing the borrowers to pay Rs. 1 crore only (in all Rs.3 crores in view

of the subsequent orders passed by the High Court extending the exparte ad-interim order dated 26.08.2015) against the total dues of

approximate Rs.117 crores. Even the High Court ought to have

considered and disposed of the application for vacating the ex-parte adinterim relief, which was filed in the year 2016 at the earliest considering

the fact that a large sum of Rs.117 crores was involved.

11. Now, in so far as the reliance placed upon the decision of this

Court in the case of J. Rajiv Subramaniyan and Anr. (supra) by the

learned senior counsel appearing on behalf of the borrowers in support

of his submission that writ petition would be maintainable, it is to be

noted that in the aforesaid case, the learned counsel appearing on

behalf of the Bank did not press the maintainability and/or entertainability

of the writ petition under Article 226 and therefore, this Court had no

occasion to consider the entertainability and/or maintainability of the writ

petition. Therefore, the aforesaid decision is not of any assistance to the

respondents – borrowers.

12. Even otherwise, it is required to be noted that a writ petition

against the private financial institution – ARC – appellant herein under

Article 226 of the Constitution of India against the proposed

action/actions under Section 13(4) of the SARFAESI Act can be said to

be not maintainable. In the present case, the ARC proposed to take

action/actions under the SARFAESI Act to recover the borrowed amount

as a secured creditor. The ARC as such cannot be said to be performing

public functions which are normally expected to be performed by the

State authorities. During the course of a commercial transaction and

under the contract, the bank/ARC lent the money to the borrowers herein

and therefore the said activity of the bank/ARC cannot be said to be as

performing a public function which is normally expected to be performed

by the State authorities. If proceedings are initiated under the

SARFAESI Act and/or any proposed action is to be taken and the

borrower is aggrieved by any of the actions of the private

bank/bank/ARC, borrower has to avail the remedy under the SARFAESI

Act and no writ petition would lie and/or is maintainable and/or

entertainable. Therefore, decisions of this Court in the cases of Praga

Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon

by the learned counsel appearing on behalf of the borrowers are not of

any assistance to the borrowers.

13. Now, so far as the submission on behalf of the borrowers that in

exercise of the powers under Article 226 of the Constitution, this Court

may not interfere with the interim / interlocutory orders is concerned, the

decision of this Court in the case of Mathew K.C. (supra) is required to

be referred to.

13.1 In the case of Mathew K.C. (supra) after referring to and/or

considering the decision of this Court in the case of Chhabil Dass

Agarwal (supra), it was observed and held in paragraph 5 as under:-

“5. We have considered the submissions on behalf of

the parties. Normally this Court in exercise of jurisdiction

under Article 136 of the Constitution is loath to interfere

with an interim order passed in a pending proceeding

before the High Court, except in special circumstances,

to prevent manifest injustice or abuse of the process of

the court. In the present case, the facts are not in

dispute. The discretionary jurisdiction under Article 226 is

not absolute but has to be exercised judiciously in the

given facts of a case and in accordance with law. The

normal rule is that a writ petition under Article 226 of the

Constitution ought not to be entertained if alternate

statutory remedies are available, except in cases falling

within the well-defined exceptions as observed

in CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass

Agarwal, (2014) 1 SCC 603], as follows: (SCC p. 611,

para 15)

“15. Thus, while it can be said that this Court

has recognised some exceptions to the rule of

alternative remedy i.e. where the statutory

authority has not acted in accordance with the

provisions of the enactment in question, or in

defiance of the fundamental principles of

judicial procedure, or has resorted to invoke the

provisions which are repealed, or when an

order has been passed in total violation of the

principles of natural justice, the proposition laid

down in Thansingh Nathmal case [Thansingh

Nathmal v. Supt. of Taxes, AIR 1964 SC

1419] , Titaghur Paper Mills case [Titaghur

Paper Mills Co. Ltd. v. State of Orissa, (1983) 2

SCC 433] and other similar judgments that the

High Court will not entertain a petition under

Article 226 of the Constitution if an effective

alternative remedy is available to the aggrieved

person or the statute under which the action

complained of has been taken itself contains a

mechanism for redressal of grievance still holds

the field. Therefore, when a statutory forum is

created by law for redressal of grievances, a

writ petition should not be entertained ignoring

the statutory dispensation.”

13.2 Applying the law laid down by this Court in the case of Mathew

K.C. (supra) to the facts on hand, we are of the opinion that filing of the

writ petitions by the borrowers before the High Court under Article 226 of

the Constitution of India is an abuse of process of the Court. The writ

petitions have been filed against the proposed action to be taken under

Section 13(4). As observed hereinabove, even assuming that the

communication dated 13.08.2015 was a notice under Section 13(4), in

that case also, in view of the statutory, efficacious remedy available by

way of appeal under Section 17 of the SARFAESI Act, the High Court

ought not to have entertained the writ petitions. Even the impugned

orders passed by the High Court directing to maintain the status quo with

respect to the possession of the secured properties on payment of Rs.1

crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to

the extent of approximately Rs.117 crores. The ad-interim relief has

been continued since 2015 and the secured creditor is deprived of

proceeding further with the action under the SARFAESI Act. Filing of the

writ petition by the borrowers before the High Court is nothing but an

abuse of process of Court. It appears that the High Court has initially

granted an ex-parte ad-interim order mechanically and without assigning

any reasons. The High Court ought to have appreciated that by passing

such an interim order, the rights of the secured creditor to recover the

amount due and payable have been seriously prejudiced. The secured

creditor and/or its assignor have a right to recover the amount due and

payable to it from the borrowers. The stay granted by the High Court

would have serious adverse impact on the financial health of the secured

creditor/assignor. Therefore, the High Court should have been

extremely careful and circumspect in exercising its discretion while

granting stay in such matters. In these circumstances, the proceedings

before the High Court deserve to be dismissed.

14. In view of the above and for the reasons stated above, present

appeals succeed. The Writ Petition Nos. 35564 to 35566 of 2015 before

the High Court are dismissed. Consequently, the ex-parte ad-interim

order dated 26.08.2015 further extended by orders dated 28.02.2017

and 27.03.2018 stand vacated.

Present appeals are accordingly allowed with costs to the

appellants to be paid by the original writ petitioners quantified at Rs.1

lakh in both the cases to be directly paid to the appellant within a period

of four weeks from today. Pending application(s), if any, also stand

disposed of.

………………………………….J.

[M.R. SHAH]

NEW DELHI; ………………………………….J.

JANUARY 12, 2022. [B.V. NAGARATHNA]

Sunday, January 16, 2022

Cheque issued as security is enforceable the cheque though issued as security at the point when the loan was advanced, it was issued as an assurance to repay the amount after the debt becomes due for repayment. The loan was in subsistence when the cheque was issued and had become repayable during June/July 2015 and the cheque issued towards repayment was agreed to be presented thereafter. If the amount was not paid in any other mode before June/July 2015, it was incumbent on the respondent No.2 to arrange sufficient balance in the account to honour the cheque which was to be presented subsequent to June/July 2015. These aspects would primafacie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent No.2 was presented. On such cheque being dishonoured, cause of action had arisen for issuing a notice and presenting the criminal complaint under Section 138 of N.I. Act on the payment not being made

Cheque issued as security is enforceable

the cheque though issued as security at the point when the loan was advanced, it was issued as an assurance to repay the amount after the debt becomes due for repayment. The loan was in subsistence when the cheque was issued and had become repayable during June/July 2015 and the cheque issued towards repayment was agreed to be presented thereafter. If the amount was not paid in any other mode before June/July 2015, it was incumbent on the respondent No.2 to arrange sufficient balance in the account to honour the cheque which was to be presented subsequent to June/July 2015. These aspects would primafacie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent No.2 was presented. On such cheque being dishonoured, cause of action had arisen for issuing a notice and presenting the criminal complaint under Section 138 of N.I. Act on the payment not being made

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 12691270 OF 2021

(Arising out of SLP(Criminal) No.252253/2020)

Sripati Singh (since deceased) Through ….Appellant(s)

His Son Gaurav Singh

Versus

The State of Jharkhand & Anr. …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

1. The appellant is before this Court assailing the order

dated 17.12.2019 passed by the High Court of Jharkhand

at Ranchi in Criminal M.P. No.2635 of 2017 and Criminal

M.P. No.2655 of 2017. Through the said order, the High

Court has allowed the said Crl.Miscellaneous Petitions and

has set aside the orders dated 04.07.2016 and 13.06.2019

passed by the Judicial Magistrate First Class, Palamau in

Complaint Case No.1833 of 2015. The learned Judicial

Magistrate by the order dated 04.07.2016 had taken

cognizance of the offence alleged against the respondent

No.2 herein. By the order dated 13.06.2019 the learned

Judicial Magistrate had rejected the petition filed by the

respondent No.2 seeking discharge in the said criminal

complaint.

2. The brief facts leading to the present case as pleaded

is that the appellant and the respondent No.2 are known to

each other inasmuch as the respondent No.2 and the

daughter of the appellant were pursuing their education

together in London. On their return to India, the

respondent No.2 had settled in Bangalore and due to the

earlier acquaintance, the cordial relationship amongst the

families had continued. The respondent No.2 on learning

that the appellant was involved in business, had

approached him at Daltonganj and sought financial

assistance to the tune of Rs.1 crore so as to enable the

respondent No.2 to invest the same in his business. Since

the respondent No.2 had assured that the same would be

returned, the appellant placed trust in him and the

appellant claims to have advanced further sum and in all a

total sum of Rs.2 crores during the periods between

January 2014 to July 2014. The said amount was paid to

respondent No.2 by transferring from the account of

appellant’s daughter and also from the account of the

appellant. Towards the said transaction, four agreements

are stated to have been entered acknowledging the receipt

of the loan. The said agreements were reduced into writing

on nonjudicial stamp papers bearing No. B489155,

B489156, B489157 and B489159.

3. The respondent No.2 assured that the amount would

be returned during June/July 2015. Towards the same,

three cheques amounting to Rs.1 crore was handed over to

the appellant. Thereafter, three more cheques for Rs.1

crore was also given. The appellant is stated to have met

respondent No.2 during July 2015 when the respondent

No.2 assured that the amount will be repaid during October

2015. Based on such assurance, the appellant presented

the cheques for realisation on 20.10.2015. On

presentation, the said cheques were returned due to

‘insufficient funds’ in the bank account of respondent No.2.

The appellant therefore got issued a legal notice as

contemplated under Section 138 of the Negotiable

Instruments Act (“N.I. Act” for short). Since the respondent

No.2 had taken the money on the assurance that the same

would be returned but had deceived the appellant, the

appellant contended that the respondent No.2 had cheated

him and accordingly the complaint was filed both under

Section 420 of IPC as also Section 138 of N.I. Act. The

appellant had submitted the sworn statement of himself

and witnesses. The learned Judicial Magistrate through the

order dated 04.07.2016 took cognizance and issued

summons to the respondent No.2.

4. The respondent No.2 on appearance filed a

miscellaneous petition seeking discharge from the criminal

proceeding, which was rejected by the order dated

13.06.2019. It is in that background, the respondent No.2

claiming to be aggrieved by the order dated 04.07.2016 and

13.06.2019 approached the High Court in the said criminal

miscellaneous petitions. The High Court, through the

impugned order has allowed the petitions filed by the

respondent No.2. The appellant therefore claiming to be

aggrieved is before this Court in these appeals.

5. We have heard Mr. M.C. Dhingra, learned counsel for

the appellant, Mr. Raj Kishor Choudhary, learned counsel

for the respondent No.1, Mr. Keshav Murthy, learned

counsel for respondent No.2 and perused the appeal

papers.

6. The learned counsel for the appellant would contend

that the respondent No.2 taking advantage of the

acquaintance with the family of the appellant, had

borrowed the amount which was to be repaid and the

cheque issued was towards discharge of the said amount.

In the said circumstance, when the cheques issued was for

discharge of the legally recoverable debt and it had been

dishonoured, the provisions of Section 138 of N.I. Act would

get attracted. Therefore, the complaint filed by the

appellant is in accordance with law. It is his further

contention that in the present case since respondent No.2

had gained the confidence of the appellant due to the

acquaintance with his daughter and in that circumstance

when the amounts which had been taken by him earlier

had been repaid so as to gain the confidence and having

received substantial amount had at that stage not made

arrangement for sufficient funds in the bank despite having

issued the cheques to assure payment, the same would

amount to the respondent No.2 cheating the appellant by

design and therefore would attract Section 420 IPC. It is

contended that towards the amount received, the same had

been acknowledged by subscribing the signature to the

loan agreement. Further, when there was an undertaking to

repay the same, the cheque was issued towards such

discharge of legally recoverable debt and the cheque on

presentation after the agreed due date for repayment of the

loan was dishonoured, the same would constitute an

offence. In that regard, it is contended that the learned

Judicial Magistrate having taken note of the complaint and

the sworn statements recorded by the appellant and his

witnesses had taken cognizance and issued summons. In

such event, the order passed by the learned Judicial

Magistrate for taking cognizance and also to reject the

discharge petition filed by the respondent No.2 was in

accordance with law. It is contended that the learned

Judge of the High Court had in fact committed an error in

arriving at the conclusion that the cheque issued by the

respondent No.2 was towards ‘security’ and that the same

could not have been treated as a cheque issued towards the

discharge of legally recoverable debt. It is contended that

the learned Judge has proceeded at a tangent and

committed an error and as such the order passed by the

High Court calls for interference.

7. To contend that the cheque issued towards discharge

of the loan and presented for recovery of the same cannot

be construed as issued for ‘security’ has relied on the

decision of this Court in the case of Sampelly

Satyanarayana Rao vs. Indian Renewable Energy

Development Agency Ltd., (Criminal Appeal No.867 of

2016) and in M/s Womb Laboratory Pvt. Ltd. vs. Vijay

Ahuja and Anr. (Criminal Appeal No.13821383 of 2019).

Hence, it is contended that the observation contained in the

order of the High Court that a cheque issued towards

security cannot attract the provision of Section 138 of N.I.

Act is erroneous and the reference made by the High Court

to the decision in Sudhir Kr. Bhalla vs. Jagdish Chand

and Others 2008 7 SCC 137 is without basis. The learned

counsel therefore contends that the order passed by the

High Court is liable to be set aside and the criminal

complaint be restored to file to be proceeded in accordance

with law.

8. Mr. Keshav Murthy, learned counsel for respondent

No.2 would contend that the learned Judicial Magistrate

without application of mind to the fact situation had taken

cognizance and issued summons and had not appropriately

considered the case put forth by the respondent No.2

seeking discharge. He would contend that the High Court

on the other hand, has taken note of the entire gamut of

the case and has arrived at the conclusion that the offence

alleged both under Section 420 IPC and Section 138 of the

N.I. Act has not been made out. It is contended that the

claim for the sum of Rs. 2 crores as made in the complaint

is without basis. It is his case that the respondent No.2 has

issued a comprehensive reply disputing the claim put forth

by the appellant. It is contended that from the very

complaint and the statement of witnesses recorded by the

learned Judicial Magistrate it is evident that no criminal

offence is made out in the instant case. Even if the case as

put forth in the complaint is taken note, at best the

transaction can be considered as an advancement of loan

for business purpose and even if it is assumed that the said

amount was not repaid it would only give rise to civil

liability and the appellants could have only filed a civil suit

for recovery of the loan. The statement of the witnesses,

more particularly the daughter of the complainant would

indicate the longstanding relationship between the parties

and also the monetary transaction which in any event does

not constitute a criminal offence. It is contended that under

any circumstance, the offence as alleged under Section 420

of IPC cannot be sustained. Insofar as the offence alleged

against the respondent No.2 under section 138 of N.I. Act,

the same would also not be sustainable when the

complainant himself has relied on the loan agreement

wherein reference is made to the cheque being issued as

security for the loan. The learned counsel contends that the

High Court in fact has taken note of these aspects,

proceeded in its correct perspective and has arrived at a

just conclusion, which does not call for interference. He

therefore, contends that the above appeals be dismissed.

9. In the light of the rival contentions, a perusal of the

appeal papers would disclose that it is the very case of the

appellant that he has advanced substantial amount of Rs.

2 crores to the respondent No.2 by way of financial

assistance for business purpose. While taking note of the

nature of the transaction and also the proceedings

initiated, it is necessary for us to remain conscious of the

fact that the proceedings between the parties is at the

preliminary stage and any conclusive findings rendered in

relation to the dispute between the parties would affect

their case if ultimately the appellants were to succeed

herein and the criminal proceedings are to be restored for

further progress. Therefore, what is necessary to be

examined herein is, as to whether the appellant has prima

facie established a transaction under which there is a

legally recoverable debt payable to the appellant by the

respondent No.2 and as to whether the cheques in question

relating to which the complaint has been filed by the

appellant is issued towards discharge of such legally

recoverable debt. In that regard, what is necessary to be

considered is also as to whether the cheques in question

are still to be considered only as ‘security’ for the said

amount and whether it was not liable to be presented for

recovery of the legally recoverable debt. The question

which would also arise for consideration is as to whether

the complaint filed by the appellant should be limited to a

proceeding under Section 138 of N.I. Act or on the facts

involved, whether the invoking of Section 420 IPC was also

justified.

10. While considering the above aspects, it is evident

that the learned Magistrate having referred to the complaint

and sworn statement of the complainant and the witnesses

has taken cognizance, issued summons and has

consequently arrived at the conclusion that the discharge

as sought by the respondent No.2 cannot be accepted. The

High Court on the other hand having referred to the rival

contentions has concluded as follows:

“20. From the aforesaid facts and from the documents

of the complainant, this Court finds that long

standing 'business transaction and inability of

refunding a loan has been given a colour of criminal

offence of cheating punishable under Section 420 of

the Indian Penal Code. A breach of trust with mens

rea gives rise to a criminal prosecution. In this case

when I go through the evidence before charge of the

complainant and the documents of the complainant, I

find that there were long standing business

transactions between the parties. Since 2011 money

was advanced by the complainant and his family

members to the accused and the complainant witness

admits that money was also transferred from the

account of the accused to the account of daughter of

the complainant. From the evidence, I find that there

is no material to suggest existence of any mens rea.

Thus, this case becomes a case of simplicitor case of

nonrefunding of loan, which cannot be a basis for

initiating criminal proceeding. The Hon'ble Supreme

Court in the case of Samir Sahay alias Sameer Sahay

versus State of UP & Anr. reported in (2018) 14 SCC

233 held that when the dispute between the parties

was ordinarily a civil dispute resulting from a breach

of contract on the part of the appellant by nonrefunding of amount advanced, the same would not

constitute an offence of cheating. In this case also, I

find that it is true case that the amount of loan has

not been refunded, thus, this cannot come within the

purview of cheating, though the complainant by

suppressing the material facts, has tried to give a

different colour. Thus, I find that no case punishable

under Section 420 of the Indian Penal Code can be

made out in this case.

21. Further, I find that it is the documents of the

complainant, which show that the cheques were given

by way of security. Even if I do not believe the

statement of the accused, the documents of the

complainant cannot be brushed aside. As held earlier,

supported by the decision of the Hon'ble Supreme

Court in the case of "Sudhir Kumar Bhalla" (supra) a

cheque given by way of security cannot attract

Section 138 of the Negotiable Instruments Act. Since

the cheques were given by way of security, which is

evident from the complainant's documents (though

this fact has also been suppressed in the complaint

petition), I find that Section 138 of the Negotiable

Instruments Act is also not attracted in this case.”

11. In the background of what has been taken note by us

and the conclusion reached by the High Court, insofar as

the High Court arriving at the conclusion that no case

punishable under Section 420 IPC can be made out in

these facts, we are in agreement with such conclusion. This

is due to the fact that even as per the case of the appellant

the amount advanced by the appellant is towards the

business transaction and a loan agreement had been

entered into between the parties. Under the loan

agreement, the period for repayment was agreed and the

cheque had been issued to ensure repayment. It is no

doubt true that the cheques when presented for realisation

were dishonoured. The mere dishonourment of the cheque

cannot be construed as an act on the part of the

respondent No.2 with a deliberate intention to cheat and

the mens rea in that regard cannot be gathered from the

point the amount had been received. In the present facts

and circumstances, there is no sufficient evidence to

indicate the offence under Section 420 IPC is made out and

therefore on that aspect, we see no reason to interfere with

the conclusion reached by the High Court.

12. Having arrived at the above conclusion and also

having taken note of the conclusion reached by the High

Court as extracted above, it is noted that the High Court

has itself arrived at the conclusion that the instant case

becomes a simpliciter case of nonrefunding of loan which

cannot be a basis for initiating criminal proceedings. The

conclusion to the extent of holding that it would not

constitute an offence of cheating, as already indicated

above would be justified. However, when the High Court

itself has accepted the fact that it is a case of nonrefunding of the loan amount, the first aspect that there is

a legally recoverable debt from the respondent No.2 to the

appellant is primafacie established. The only question that

therefore needs consideration at our hands is as to whether

the contention putforth on behalf of respondent No.2 that

an offence under Section 138 of the N.I. Act is not made out

as the dishonourment alleged is of the cheques which were

issued by way of ‘security’ and not towards discharge of any

debt.

13. In order to consider this aspect of the matter we have

at the outset taken note of the four loan agreements dated

13.08.2014 which is the subject matter herein. Under each

of the agreements, the promise made by respondent No.2 is

to pay the appellant a sum of Rs.50 lakhs. Thus, the total

of which would amount to Rs.2 crores as contended by the

appellant. Towards the promise to pay, the repayment

agreed by the respondent No.2 is to clear the total amount

within June/July 2015. Para 5 of the loan agreement

indicates that six cheques have been issued as security.

The claim of the appellant has been negated by the High

Court only due to the fact that the agreement indicates that

the cheques have been given by way of security and the

complainant has also stated this fact in the complaint.

Though the High Court has taken note of the decision in

the case of Sudhir Kumar Bhalla (supra) to hold that the

cheque issued as security cannot constitute an offence, the

same in our opinion does not come to the aid of the

respondent No.2. There is no categorical declaration by this

Court in the said case that the cheque issued as security

cannot be presented for realisation under all

circumstances. The facts in the said case relate to the

cheques being issued and there being alterations made in

the cheques towards which there was also a counter

complaint filed by the drawer of the cheque. Hence, the

said decision cannot be a precedent to answer the position

in this case and the High Court was not justified in placing

reliance on the same.

14. In fact, it would be apposite to take note of the

decision of this Court in the case of Sampelly

Satyanarayana Rao (supra) wherein this Court while

answering the issue as to what constitutes a legally

enforceable debt or other liability as contained in the

Explanation 2 to Section 138 of N.I. Act has held as

hereunder:

“10. We have given due consideration to the

submission advanced on behalf of the appellant as well

as the observations of this Court in Indus Airways

(supra) with reference to the explanation to Section 138

of the Act and the expression "for discharge of any debt

or other liability" occurring in Section 138 of the Act.

We are of the view that the question whether a

postdated cheque is for "discharge of debt or

liability" depends on the nature of the transaction.

If on the date of the cheque liability or debt exists

or the amount has become legally recoverable, the

Section is attracted and not otherwise.

11. Reference to the facts of the present case clearly

shows that though the word "security" is used in

Clause 3.l (iii) of the agreement, the said expression

refers to the cheques being towards repayment of

instalments. The repayment becomes due under the

agreement, the moment the loan is advanced and the

instalment falls due. It is undisputed that the loan

was duly disbursed on 28th February, 2002 which

was prior to the date of the cheques. Once the loan

was disbursed and instalments have fallen due on

the date of the cheque as per the agreement,

dishonour of such cheques would fall under

Section 138 of the Act. The cheques undoubtedly

represent the outstanding liability.

12. Judgment in Indus Airways (supra) is clearly

distinguishable. As already noted, it was held therein

that liability arising out of claim for breach of contract

under Section 138, which arises on account of

dishonour of cheque issued was not by itself at par

with criminal liability towards discharge of

acknowledged and admitted debt under a loan

transaction. Dishonour of cheque issued for discharge

of later liability is clearly covered by the statute in

question. Admittedly, on the date of the cheque there

was a debt/liability in presenti in terms of the loan

agreement, as against the case of Indus Airways

(supra), where the purchase order had been cancelled

and cheque issued towards advance payment for the

purchase order was dishonoured. In that case, it was

found that the cheque had not been issued for

discharge of liability but as advance for the purchase

order which was cancelled. Keeping in mind this fine

but real distinction, the said judgment cannot be

applied to a case of present nature where the

cheque was for repayment of loan instalment

which had fallen due though such deposit of

cheques towards repayment' of instalments was

also described as "security" in the loan agreement.

In applying the judgment in Indus Airways (supra),

one cannot lose sight of the difference between a

transaction of purchase order which is cancelled

and that of a loan transaction where loan has

actually been advanced and its repayment is due

on the date of the cheque.

13. Crucial question to determine applicability of

Section 138 of the Act is whether the cheque

represents discharge of existing enforceable debt

or liability or whether it represents advance

payment without there being subsisting debt or

liability. While approving the views of different

High Courts noted earlier, this is the underlying

principle as can be discerned from discussion of

the said cases in the judgment of this Court.”

(emphasis supplied)

The said conclusion was reached by this Court while

distinguishing the decision of this Court in the case of Indus

Airways Pvt. Ltd. Vs. Magnum Aviation Pvt. Ltd. (2014) 12

SCC 539 which was a case wherein the issue was of dishonour

of postdated cheque issued by way of advance payment against

a purchase order that had arisen for consideration. In that

circumstance, it was held that the same cannot be considered

as a cheque issued towards discharge of legally enforceable

debt.

15. Further, this Court in the case of M/s Womb

Laboratories Pvt. Ltd. (supra) has held as follows:

“5. In our opinion, the High Court has muddled

the entire issue. The averment in the complaint

does indicate that the signed cheques were handed

over by the accused to the complainant. The

cheques were given by way of security, is a matter

of defence. Further, it was not for the discharge of

any debt or any liability is also a matter of defence.

The relevant facts to countenance the defence will

have to be proved that such security could not be

treated as debt or other liability of the accused.

That would be a triable issue. We say so because,

handing over of the cheques by way of security per

se would not extricate the accused from the

discharge of liability arising from such cheques.

6. Suffice it to observe, the impugned judgment of

the High Court cannot stand the test of judicial

scrutiny. The same is, therefore, set aside.”

16. A cheque issued as security pursuant to a

financial transaction cannot be considered as a

worthless piece of paper under every circumstance.

‘Security’ in its true sense is the state of being safe and

the security given for a loan is something given as a

pledge of payment. It is given, deposited or pledged to

make certain the fulfilment of an obligation to which the

parties to the transaction are bound. If in a transaction,

a loan is advanced and the borrower agrees to repay the

amount in a specified timeframe and issues a cheque as

security to secure such repayment; if the loan amount is

not repaid in any other form before the due date or if

there is no other understanding or agreement between

the parties to defer the payment of amount, the cheque

which is issued as security would mature for

presentation and the drawee of the cheque would be

entitled to present the same. On such presentation, if

the same is dishonoured, the consequences

contemplated under Section 138 and the other

provisions of N.I. Act would flow.

17. When a cheque is issued and is treated as

‘security’ towards repayment of an amount with a time

period being stipulated for repayment, all that it ensures

is that such cheque which is issued as ‘security’ cannot

be presented prior to the loan or the instalment maturing

for repayment towards which such cheque is issued as

security. Further, the borrower would have the option of

repaying the loan amount or such financial liability in

any other form and in that manner if the amount of loan

due and payable has been discharged within the agreed

period, the cheque issued as security cannot thereafter

be presented. Therefore, the prior discharge of the loan or

there being an altered situation due to which there would

be understanding between the parties is a sine qua non

to not present the cheque which was issued as security.

These are only the defences that would be available to the

drawer of the cheque in a proceedings initiated under

Section 138 of the N.I. Act. Therefore, there cannot be a

hard and fast rule that a cheque which is issued as

security can never be presented by the drawee of the

cheque. If such is the understanding a cheque would also

be reduced to an ‘on demand promissory note’ and in all

circumstances, it would only be a civil litigation to

recover the amount, which is not the intention of the

statute. When a cheque is issued even though as

‘security’ the consequence flowing therefrom is also

known to the drawer of the cheque and in the

circumstance stated above if the cheque is presented and

dishonoured, the holder of the cheque/drawee would

have the option of initiating the civil proceedings for

recovery or the criminal proceedings for punishment in

the fact situation, but in any event, it is not for the

drawer of the cheque to dictate terms with regard to the

nature of litigation.

18. If the above principle is kept in view, as already

noted, under the loan agreement in question the

respondent No.2 though had issued the cheques as

security, he had also agreed to repay the amount during

June/July 2015, the cheque which was held as security

was presented for realization on 20.10.2015 which is after

the period agreed for repayment of the loan amount and the

loan advanced had already fallen due for payment.

Therefore, prima facie the cheque which was taken as

security had matured for payment and the appellant was

entitled to present the same. On dishonour of such cheque

the consequences contemplated under the Negotiable

Instruments Act had befallen on respondent No.2. As

indicated above, the respondent No.2 may have the defence

in the proceedings which will be a matter for trial. In any

event, the respondent No.2 in the fact situation cannot

make a grievance with regard to the cognizance being taken

by the learned Magistrate or the rejection of the petition

seeking discharge at this stage.

19. In the background of the factual and legal position

taken note supra, in the instant facts, the appellant cannot

be nonsuited for proceeding with the complaint filed under

Section 138 of N.I. Act merely due to the fact that the

cheques presented and dishonoured are shown to have

been issued as security, as indicated in the loan agreement.

In our opinion, such contention would arise only in a

circumstance where the debt has not become recoverable

and the cheque issued as security has not matured to be

presented for recovery of the amount, if the due date agreed

for payment of debt has not arrived. In the instant facts, as

noted, the repayment as agreed by the respondent No.2 is

during June/July 2015. The cheque has been presented by

the appellant for realisation on 20.10.2015. As on the date

of presentation of the cheque for realisation the repayment

of the amount as agreed under the loan agreement had

matured and the amount had become due and payable.

Therefore, to contend that the cheque should be held as

security even after the amount had become due and

payable is not sustainable. Further, on the cheques being

dishonoured the appellant had got issued a legal notice

dated 21.11.2015 wherein interalia it has been stated as

follows:

“You request to my client for loan and after accepting

your word my client give you loan and advanced loan

and against that you issue different cheque all

together valued Rs. One crore and my client was also

assured by you will clear the loan within June/July

2015 and after that on 26.10.2015 my client produce

the cheque for encashment in H.D.F.C. Bank all

cheque bearing No.402771 valued Rs. 25 Lakh,

402770 valued Rs.25 lakh, 402769 valued Rs. 50

lakh, (total rupees one crore) and above numbered

cheques was returned with endorsement "In sufficient

fund". Then my client feel that you have not fulfil the

assurance.”

20. The notice as issued indicates that the appellant has

at the very outset after the cheque was dishonoured,

intimated the respondent no.2 that he had agreed to clear

the loan by June/July 2015 after which the appellant had

presented the cheque for encashment on 26.10.2015 and

the assurance to repay has not been kept up.

21. In the above circumstance, the cheque though issued

as security at the point when the loan was advanced, it was

issued as an assurance to repay the amount after the debt

becomes due for repayment. The loan was in subsistence

when the cheque was issued and had become repayable

during June/July 2015 and the cheque issued towards

repayment was agreed to be presented thereafter. If the

amount was not paid in any other mode before June/July

2015, it was incumbent on the respondent No.2 to arrange

sufficient balance in the account to honour the cheque

which was to be presented subsequent to June/July 2015.

22. These aspects would primafacie indicate that there

was a transaction between the parties towards which a

legally recoverable debt was claimed by the appellant and

the cheque issued by the respondent No.2 was presented.

On such cheque being dishonoured, cause of action had

arisen for issuing a notice and presenting the criminal

complaint under Section 138 of N.I. Act on the payment not

being made. The further defence as to whether the loan had

been discharged as agreed by respondent No.2 and in that

circumstance the cheque which had been issued as

security had not remained live for payment subsequent

thereto etc. at best can be a defence for the respondent

No.2 to be put forth and to be established in the trial. In

any event, it was not a case for the Court to either refuse to

take cognizance or to discharge the respondent No.2 in the

manner it has been done by the High Court. Therefore,

though a criminal complaint under Section 420 IPC was

not sustainable in the facts and circumstances of the

instant case, the complaint under section 138 of the N.I Act

was maintainable and all contentions and the defence were

to be considered during the course of the trial.

23. In that view, the order dated 17.12.2019 passed by

the High Court of Jharkhand in Cr.M.P No.2635 of 2017

with Cr.M.P No.2655 of 2017 are set aside. Consequently,

the order dated 04.07.2016 and 13.06.2019 passed by the

Judicial Magistrate are restored. The complaint bearing

C.C. No.1839 of 2015 and 1833 of 2015 are restored to the

file of the Judicial Magistrate, limited to the complaint

under Section 138 of N.I. Act to be proceeded in accordance

with law.

24. All contentions of the parties on merit are left open.

We make it clear that none of the observations contained

herein shall have a bearing on the main trial. The trial

court shall independently arrive at its conclusion based on

the evidence tendered before it.

25. The appeals are allowed in part with no order as to

costs.

26. Pending application, if any, shall also stand disposed

of.

…………………….J.

(M.R. SHAH)

…………………….J.

(A.S. BOPANNA)

New Delhi,

October 28, 2021

Wednesday, December 15, 2021

quashing the Chargesheet Sections 498-A, 323, 504, 506, 304-B of IPC and Sections 3 & 4 of the D.P. Act = It is the well-settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”

SLP(Crl.) No. 2786 of 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1628 OF 2021

(Arising out of SLP (Crl.) No.2786 OF 2019)

Mirza Iqbal @ Golu & Anr. ...Appellant(s)

vs.

State of Uttar Pradesh & Anr ...Respondent(s)

J U D G M E N T

R. SUBHASH REDDY,J.

1. Leave granted.

2. This Criminal Appeal is filed aggrieved by the

order dated 10.12.2018 passed by the High Court of

Judicature at Allahabad in Application No.44475 of

2018.

3. The aforesaid application was filed before the

High Court under Section 482 of Cr.P.C. for quashing

the Chargesheet No.01 of 2018 dated 12.10.2018 and

order of Chief Judicial Magistrate, taking cognizance

of the case vide order dated 22.10.2018 for the

SLP(Crl.) No. 2786 of 2019

offences punishable under Sections 498-A, 323, 504,

506, 304-B of IPC and Sections 3 & 4 of the Dowry

Prohibition Act, 1961 (D.P. Act) in Case Crime

No.0136 of 2018 registered on the file of PS-Kotwali,

District Gorakhpur.

4. The 2nd respondent – complainant Shri Nisar Ullah

father of the deceased, Rushda Nisar has lodged a

complaint on 25.07.2018 at 09:31 p.m. at PS-Kotwali,

District Gorakhpur to the effect that his younger

daughter namely Rushda Nisar was married to Mirza

Ismail Beg alias Amir s/o Zaki Ullah r/o MohallaMuftipur of Gorakhpur District on 25.12.2015. After

the solemnization of marriage, the accused persons

Mirza Ismail Beg alias Amir (husband), brother-in-law

(devar) Mirza Iqbal alias Golu (1st Appellant herein),

sister-in-law (nanad) Hifza alias Chinki and motherin-law (saas) Sammi (2nd Appellant) continuously used

to demand a four-wheeler vehicle and Rs.10,00,000/-

in cash as dowry. It is alleged that as the said

demands were not met, they used to beat his daughter

and threatened to kill her. It is, further, alleged

that ten days prior to the date of incident, all the

accused persons with a common intention had severely

SLP(Crl.) No. 2786 of 2019

beaten up his daughter and threatened to kill, if the

demands of dowry of cash and car were not met. On

being compelled, he had also given an amount of

Rs.2,70,000/- cash from his business earning, in

spite of the same, accused was adamant in demanding

the car. On 24.07.2018 at about 8 p.m., the accused

persons with a common intention beat his daughter,

killed her by putting a noose around her neck and

hanged her. On coming to know of the incident, he

went along with his son from Surat and he was shocked

to see his daughter in such a state. When the

situation has become slightly normal, he has lodged a

report to take necessary action and to initiate legal

proceedings against the accused. Based on the

aforesaid complaint, a case was registered against

all the named accused including the appellants

herein, who are brother-in-law and mother-in-law of

the deceased for the alleged offences under Sections

498-A, 323, 504, 506, 304-B of IPC and Sections 3 & 4

of the D.P. Act.

5. When the appellants have filed quash petition

before the High Court, it was disposed of by impugned

order directing the appellants to surrender before

SLP(Crl.) No. 2786 of 2019

the Court below and apply for grant of bail and the

same was directed to be considered in accordance with

law.

6. Pursuant to the complaint, crime was registered

and after registration, investigation was taken up

and after completing the investigation, final report

was filed on 12.10.2018 and the same was taken

cognizance by learned Chief Judicial Magistrate by

order dated 22.10.2018.

7. We have heard Ms. Vibha Datta Makhija, learned

Senior Counsel appearing on behalf of the appellants

and Mr. Sahdev Singh, learned counsel for State of

Uttar Pradesh and Mohd. Asad Khan, learned counsel

for the respondent no.2/Complainant.

8. Learned senior counsel appearing for the

appellants has contended that the 1st Appellant

herein, is brother-in-law of the deceased is working

as a Cashier in ICICI Bank, Khalilabad. On the date

of incident i.e. on 24.07.2018, he was on duty. It is

submitted that he resides at Khalilabad in view of

his employment in ICICI Bank and his mother–2nd

Appellant Shamima Bano alias Sammi is also living

SLP(Crl.) No. 2786 of 2019

with him at Khalilabad since 2017. It is submitted

that even as per the case of the prosecution, the

incident has taken place at about 8 p.m. at

Gorakhpur, which is 40 kms away from Khalilabad. On

the date of incident, he was on duty at ICICI Bank

and entered the branch at 09:49 a.m. and came out at

06:25 p.m. In spite of the same, on vague and bald

allegations, appellants are sought to be prosecuted,

without any specific allegations either in complaint

or in the chargesheet. It is submitted that during

the pendency of investigation, the appellant has

filed affidavit before the Senior Superintendent of

Police, District Gorakhpur, stating that he was in

the Bank on the date of incident and requested to

investigate by looking into the call details of his

mobile number and also CCTV footage of the bank. It

is submitted that his sister-in-law i.e. the deceased

was under mental depression and was undergoing

treatment for the same. It is submitted that in spite

of such an affidavit filed by the appellants without

any investigation, in a casual and routine manner,

final report was filed with vague and omnibus

allegation against the appellants. It is submitted

SLP(Crl.) No. 2786 of 2019

that in absence of any specific allegations against

the appellants disclosing their active involvement,

the learned Chief Judicial Magistrate has taken

cognizance in a routine and mechanical manner. It is

submitted that as there is no material or any

specific allegations against the appellants/accused

and if they are allowed to face the trial, it is

nothing but abuse of the process of law. Learned

counsel has submitted that it is evidently a fit

case to quash the proceedings, by allowing the

appeal.

9. On the other hand, learned counsel appearing for

st respondent-State and 2nd respondent-Complainant,

have submitted that in view of specific mention of

the names in the complaint as well as in the

chargesheet, it is not a case to quash the

proceedings at this stage. It is submitted that the

appellants have to prove their innocence in the

trial. It is submitted that all the accused were

demanding dowry of Rs.10,00,000/- and a car from the

deceased and on 24.07.2018 with a common intention,

all of them caused injuries to the deceased and

ultimately killed her. It is submitted that as the

SLP(Crl.) No. 2786 of 2019

postmortem report clearly reveals cause of death as

asphyxia, there are no grounds to quash the

proceedings. Further, it is submitted that the quash

petition filed by the sister-in-law of the deceased

was dismissed by this Court vide order dated

15.04.2019.

10. Having heard the learned counsels on both the

sides, We have carefully perused impugned order,

other material placed on record and counter

affidavits filed on behalf of 1st Respondent–State as

well as on behalf of 2nd Respondent–complainant.

11. The appellants are brother-in-law and mother-inlaw respectively of the deceased. A perusal of the

complaint filed by the 2nd respondent, pursuant to

which a crime was registered, does not indicate any

specific allegations by disclosing the involvement of

the appellants. It is the specific case of the 1st

appellant that he was working as a cashier in ICICI

Bank at Khalilabad branch, which is at about 40 kms

from Gorakhpur. The alleged incident was on

24.07.2018 at about 8 p.m. When the investigation was

pending, the 1st appellant has filed affidavit before

Senior Superintendent of Police on 08.08.2018, giving

SLP(Crl.) No. 2786 of 2019

his employment details and stated that he was falsely

implicated. It was his specific case that during the

relevant time, he was working at ICICI Bank,

Khalilabad branch, Gorakhpur and his mother was also

staying with him. The Branch Manager has endorsed his

presence in the branch, showing in-time at 09:49 a.m.

and out-time at 06:25 p.m. Even in the statement of

nd respondent recorded by the police and also in the

final report filed under Section 173(2) of Cr.P.C.,

except omnibus and vague allegations, there is no

specific allegation against the appellants to show

their involvement for the offences alleged. This

Court, time and again, has noticed making the family

members of husband as accused by making casual

reference to them in matrimonial disputes. Learned

senior counsel for the appellants, in support of her

case, placed reliance on the judgment of this Court

in the case of Geeta Mehrotra and Anr. v. State of

Uttar Pradesh and Anr.1. In the aforesaid case, this

Court in identical circumstances, has quashed the

proceedings by observing that family members of

husband were shown as accused by making casual

(2012) 10 SCC 741

SLP(Crl.) No. 2786 of 2019

reference to them. In the very same judgment, it is

held that a large number of family members are shown

in the FIR by casually mentioning their names and the

contents do not disclose their active involvement, as

such, taking cognizance of the matter against them

was not justified. It is further held that taking

cognizance in such type of cases results in abuse of

judicial process. Paras 18 and 25 of the said

judgment, which are relevant for the purpose of this

case, read as under:

“18. Their Lordships of the Supreme

Court in Ramesh case [(2005)3 SCC

507 : 2005 SCC (Cri) 735] had been

pleased to hold that the bald

allegations made against the sisterin-law by the complainant appeared to

suggest the anxiety of the informant

to rope in as many of the husband's

relatives as possible. It was held

that neither the FIR nor the chargesheet furnished the legal basis for

the Magistrate to take cognizance of

the offences alleged against the

appellants. The learned Judges were

pleased to hold that looking to the

allegations in the FIR and the

contents of the charge-sheet, none of

the alleged offences under Sections

498-A, 406 IPC and Section 4 of the

Dowry Prohibition Act were made

against the married sister of the

complainant's husband who was

undisputedly not living with the

family of the complainant's husband.

Their Lordships of the Supreme Court

SLP(Crl.) No. 2786 of 2019

were pleased to hold that the High

Court ought not to have relegated the

sister-in-law to the ordeal of trial.

Accordingly, the proceedings against

the appellants were quashed and the

appeal was allowed.

25. However, we deem it appropriate to

add by way of caution that we may not

be misunderstood so as to infer that

even if there are allegations of overt

act indicating the complicity of the

members of the family named in the FIR

in a given case, cognizance would be

unjustified but what we wish to

emphasise by highlighting is that, if

the FIR as it stands does not disclose

specific allegation against the

accused more so against the co-accused

specially in a matter arising out of

matrimonial bickering, it would be

clear abuse of the legal and judicial

process to mechanically send the named

accused in the FIR to undergo the

trial unless of course the FIR

discloses specific allegations which

would persuade the court to take

cognizance of the offence alleged

against the relatives of the main

accused who are prima facie not found

to have indulged in physical and

mental torture of the complainant

wife. It is the well-settled principle

laid down in cases too numerous to

mention, that if the FIR did not

disclose the commission of an offence,

the court would be justified in

quashing the proceedings preventing

the abuse of process of law.

Simultaneously, the courts are

expected to adopt a cautious approach

in matters of quashing, especially in

cases of matrimonial disputes whether

the FIR in fact discloses commission

of an offence by the relatives of the

principal accused or the FIR prima

SLP(Crl.) No. 2786 of 2019

facie discloses a case of

overimplication by involving the

entire family of the accused at the

instance of the complainant, who is

out to settle her scores arising out

of the teething problem or skirmish of

domestic bickering while settling down

in her new matrimonial surrounding.”

12. From a perusal of the complaint filed by the 2nd

respondent and the final report filed by the police

under Section 173(2) of Cr.P.C., We are of the view

that the aforesaid judgment fully supports the case

of the appellants. Even in the counter affidavits

filed on behalf of respondent nos.1 and 2, it is not

disputed that the 1st appellant was working in ICICI

Bank at Khalilabad branch, but merely stated that

there was a possibility to reach Gorakhpur by 8 p.m.

Though there is an allegation of causing injuries,

there are no other external injuries noticed in the

postmortem certificate, except the single ante-mortem

injury i.e. ligature mark around the neck, and the

cause of death is shown as asphyxia. Having regard to

the case of the appellants and the material placed on

record, we are of the considered view that except

vague and bald allegations against the appellants,

there are no specific allegations disclosing the

involvement of the appellants to prosecute them for

SLP(Crl.) No. 2786 of 2019

the offences alleged. In view of the judgment of this

Court in the case of Geeta Mehrotra and Anr.1, which

squarely applies to the case of the appellants, we

are of the view that it is a fit case to quash the

proceedings.

13. For the aforesaid reasons, this appeal is allowed

and the impugned order dated 10.12.2018 passed in

Application No.44475 of 2018 by the High Court, is

set aside. Consequently, the chargesheet no.01 dated

12.10.2018 filed in FIR No.136 of 2018 on the file of

PS-Kotwali, District Gorakhpur for the offences under

Sections 498-A, 323, 504, 506, 304-B of IPC and

Sections 3 & 4 of the D.P. Act and the consequential

order dated 22.10.2018, passed by the Chief Judicial

Magistrate, Gorakhpur, is hereby quashed.

………………………………………………J

[R. Subhash Reddy]

………………………………………………J

[Hrishikesh Roy]

New Delhi.

December 14, 2021

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