When the genesis of the deprecated incident was the pending of civil disputes - Sc & St case should not be registered.

 

where it appears to the Court that the offence in   question,   although   covered   under   the   SC/ST   Act,   is   primarily private or civil in nature, or where the alleged offence has not been committed   on   account   of   the   caste   of   the   victim,   or   where   the continuation of the legal proceedings would be an abuse of the process of law, the Court can exercise its powers to quash the proceedings

We may hasten to add that in cases such as the present, the Courts ought to be even more vigilant to ensure that the complainantvictim has entered into the compromise on the volition of his/her free will and not on account of any duress. It cannot be understated that since members of the Scheduled Caste and Scheduled Tribe belong to the weaker sections of our country, they are more prone to acts of coercion,   and   therefore   ought   to   be   accorded   a   higher   level   of protection. If the Courts find even a hint of compulsion or force, no relief can be given to the accused party. What factors the Courts should consider, would depend on the facts and circumstances of each case.

Firstly,  the very purpose behind Section 3(1)(x) of the SC/ST is to deter caste­based insults and intimidations when they are used with  the intention of demeaning a victim on account of he/she belonging to the Scheduled Caste/  Scheduled Tribe community. 

In the present case, the record manifests that there was an undeniable pre­existing civil dispute between the parties. 

The case of the Appellant, from the very beginning, has been that the alleged abuses were uttered solely on account of frustration and anger over the pending dispute. 

Thus, the   genesis   of   the   deprecated   incident   was   the   afore­stated civil/property dispute. 

Considering this aspect, we are of the opinion that it would not be incorrect to categorise the occurrence as one being overarchingly private in nature, having only subtle undertones of criminality, even though the provisions of a special statute have been attracted in the present case. 

Secondly,  the offence in question, for which the Appellant has been convicted, does not appear to exhibit his mental depravity. 

The aim of the SC/ST Act is to protect members of the downtrodden classes from atrocious acts of the upper strata of the society. 

It appears to us that although  the  Appellant may  not belong to   the  same  caste  as  the Complainant,   he   too   belongs   to   the   relatively   weaker/backward section of the society and is certainly not in any better economic or social position when compared to the victim. 

Despite the rampant prevalence of segregation in Indian villages whereby members of the Scheduled Caste and Scheduled Tribe community are forced to restrict  their quartes only to certain areas, it is seen that in the present case, the   Appellant   and   the   Complainant   lived   in   adjoining   houses. 

Therefore, keeping in mind the socio­economic status of the Appellant, we are of the opinion that the overriding objective of the SC/ST Act would not be overwhelmed if the present proceedings are quashed.  

Thirdly, the incident occurred way back in the year 1994. Nothing on record indicates that either before or after the purported compromise, any untoward incident had transpired between the parties. The State Counsel has also not brought to our attention any other occurrence that would lead us to believe that the Appellant is either a repeat offender or is unremorseful about what transpired. 

 Fourthly, the Complainant has, on her own free will, without any compulsion,   entered   into   a   compromise   and   wishes   to   drop   the present criminal proceedings against the accused.  Fifthly, given the nature of the offence, it is immaterial that the trial against the Appellant had been concluded.  

Sixthly,  the Appellant and the Complainant parties are residents of the same village and live in very close proximity to each other. We have no reason to doubt that the parties themselves have voluntarily settled their differences. 

Therefore, in order to avoid the revival of healed wounds, and to advance peace and harmony, it will be prudent to effectuate the present settlement. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1393 OF 2011

Ramawatar … Appellant

                                             VERSUS

State of Madhya Pradesh  … Respondent

JUDGMENT

SURYA KANT, J.

A civil dispute over the ownership and possessory rights of a

piece of land between the Appellant and his neighbour Prembai took

an ugly turn when the Appellant allegedly not only threw a brick on

the Complainant but also made filthy and slur remarks on her caste,

which prompted the Complainant to lodge FIR No. 18/94 at Police

Station O.E. Panna under Section 3(1)(x) of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities Act), 1989 (in short

‘SC/ST Act’) read with Section 34 of the Indian Penal Code, 1860 (in

short ‘I.P.C.’).   The Appellant and his co­accused were subsequently

tried, which led to the Appellant’s conviction under Section 3(1)(x) of

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the SC/ST Act and consequential sentence of six months rigorous

imprisonment and fine of Rs. 1000/­. The Appellant challenged his

conviction and sentence before the High Court of Madhya Pradesh,

Jabalpur Bench but his appeal  was dismissed vide the impugned

judgment dated 02.08.2010.

BRIEF FACTS:

2. Ramawatar   (Appellant)   and   Prembai   (Complainant),   who   are

neighbours and live in adjoining houses, were entangled in a property

dispute with respect to a portion of land over which Prembai’s house

was   built.   On   25.06.1994,   Ramawatar   and   his   brother   Katulal   @

Kuddu (Co­accused) broke down a wall to make a door that opened

into the house of Prembai. When this was resisted by her, a quarrel

ensued between the parties and the Appellant threw a brick at the

Complainant. Thereafter, this incident was reported and a complaint

was lodged at Police Station, Devendra Nagar on the same date itself,

and an M.L.C was also performed. Since the nature of the injury was

simple, and the offence was found non­cognizable, the Police took no

further   steps.   On   the   following   day,   i.e.,   26.06.1994,   when   the

Complainant was sitting in front of her residence, the Appellant and

his brother appeared at the scene. They were visibly enraged by the

fact that Prembai had lodged an F.I.R. against them. They started

abusing   her   with   repeated   reference   to   her   caste   whilst   also

Page | 2

threatening her of dire consequences. After that, the Complainant and

her husband Chotelal reported this incident before the Harijan Welfare

Police Station, and the subject­F.I.R. under the SC/ST Act was lodged

against the Accused.

3. The investigation commenced in light of the afore­stated facts.

Upon   collection   of   substantial   evidence,   Appellant   and   co­accused

were committed to trial under Section 3(1)(x) of the SC/ST Act read

with Section 34 of the I.P.C.

4. The Trial Court noted that the Complainant belonged to the

‘Prajapati’   community   which   is   a   Scheduled   Caste.   It   was   also

observed that the parties had candidly admitted to a pending property

dispute  between them. The Trial  Court further discerned  that the

prosecution witnesses had, by and large, supported the version of the

Complainant and had indubitably substantiated that Ramawatar and

Kuddu   used   deprecatory   language   upon   the   Complainant.   It   was

found   that   the   Appellant   had   made   specific   reference   to   the

Complainant’s caste escorted by the intent to insult her. The actions

of   the   Appellant   &   co­accused   Kuddu   were   thus   held   to   be   in

contravention of Section 3(1)(x) of the SC/ST Act read with Section 34

I.P.C. The Trial Court, therefore, convicted both the accused persons

for the said offences and sentenced each of them to undergo rigorous

imprisonment for 6 months. 

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5. Discontented   with   their   conviction,   the   accused   preferred   an

appeal before the High Court of Madhya Pradesh, Jabalpur Bench.

However, during the pendency of the proceedings, co­accused Kuddu

passed away, and the appeal only survived qua the present Appellant.

His primary contention before the High Court was that the abuses, if

any, were not meant to demean the Complainant on account of her

being   a  member   of   the   Scheduled   Caste   community.   Instead,   the

incident   occurred   on   account   of   a   property   dispute   between   the

parties. It was thus submitted that the alleged incident could not

attract the provisions of the SC/ST Act. However, after re­appraising

the evidence on record, the High Court disagreed with the Appellant’s

contention and held that there was sufficient material to establish that

the Complainant being a member of the Scheduled Caste community

was humiliated by the Appellant. Thus, concurring with the findings of

the Trial Court, the High Court maintained the order of conviction and

sentence passed against the Appellant. 

6. Aggrieved, the Appellant has approached this Court.

CONTENTIONS:

7. When the instant appeal came up for hearing, what prompted

this   Court   to   issue   notice   was   that   the   matter   had   been   settled

between the parties, and the Complainant had filed an application for

compromise.   Reiterating   the   same   plea,   learned   Counsel   for   the

Page | 4

Appellant canvassed before us that the parties are residents of the

same village and there is no existing enmity between them. It was

submitted that the parties wished to settle their dispute so that they

may continue to have cordial relations. He drew our attention to a

decision of this Court in Hitesh Verma v. The State of Uttarakhand

&   Anr1

,   wherein,   it   was   held   that   a   property   dispute   between   a

vulnerable section of the society and a person of upper caste would

not attract an offence under the SC/ST Act, unless the allegations are

on account of the victim being a Scheduled Caste. Learned Counsel for

the Appellant thus prayed for invocation of this Court’s powers under

Article   142   of   the   Constitution   to   quash   the   instant   criminal

proceedings.   The   Appellant’s   stand   and   the   application   for

compromise   were   fully   supported   by   the   learned   Counsel   for   the

Complainant.

8. Per Contra, learned Counsel for the Respondent State, without

controverting the factum of compromise, vehemently opposed such a

recourse. It was contended that there was a concurrent finding of

conviction, and no substantial question of law was involved in the

present appeal. Referring to the decisions of this Court in the case of

Ram Lal & Anr v. State of J&K2

, Surendra Nath Mohanty & Anr

1 (2020) 10 SCC 710, ¶ 22 & 24

2 (1999) 2 SCC 213

Page | 5

v.  State  of  Orissa3

  and  Bankat  &  Anr  v.  State  of  Maharastra4

,

learned   State   Counsel   submitted   that   the   purported   settlement

between the parties is inconsequential as the offence in question is not

compoundable   in   terms   of   Section   320   of   the   Code   of   Criminal

Procedure,   1973   (in   short   ‘Cr.P.C’).   It   was   thus   argued   that   the

present case did not warrant any interference by this Court.

ANALYSIS:

9. Having heard learned Counsel for the parties at some length, we

are of the opinion that two questions fall for our consideration in the

present appeal.  First,  whether the jurisdiction of this Court under

Article 142 of the Constitution can be invoked for quashing of criminal

proceedings arising out of a ‘non­compoundable offence? If yes, then

whether the power to quash proceedings can be extended to offences

arising out of special statutes such as the SC/ST Act?

10. So far as the first question is concerned, it would be ad rem to

outrightly refer to the recent decision of this Court in the case of

Ramgopal & Anr v. The State of Madhya Pradesh5

, wherein, a twoJudge Bench of this Court consisting of two of us (N.V. Ramana, CJI &

Surya Kant, J) was confronted with an identical question. Answering

in the affirmative, it has been clarified that the jurisdiction of a Court

under   Section   320   Cr.P.C   cannot   be   construed   as   a   proscription

3 (1999) 5 SCC 238

4 (2005) 1 SCC 343

5 Criminal Appeal No. 1489 of 2012

Page | 6

against the invocation of inherent powers vested in this Court under

Article 142 of the Constitution nor on the powers of the High Courts

under Section 482 Cr.P.C. It was further held that the touchstone for

exercising the extra­ordinary powers under Article 142 or Section 482

Cr.P.C., would be to do complete justice. Therefore, this Court or the

High Court, as the case may be, after having given due regard to the

nature of the offence and the fact that the victim/complainant has

willingly   entered   into   a   settlement/compromise,   can   quash

proceedings   in   exercise   of   their   respective   constitutional/inherent

powers. 

11. The   Court   in  Ramgopal   (Supra)    further   postulated   that

criminal proceedings involving non­heinous offences or offences which

are predominantly of a private nature, could be set aside at any stage

of   the   proceedings,   including   at   the   appellate   level.   The   Court,

however, being conscious of the fact that unscrupulous offenders may

attempt to escape their criminal liabilities by securing a compromise

through   brute   force,   threats,   bribes,   or   other   such   unethical   and

illegal means, cautioned that in cases where a settlement is struck

post­conviction, the Courts should,  inter­alia,  carefully examine the

fashion in which the compromise has been arrived at, as well as, the

conduct of the accused before and after the incident in question. While

concluding, the Court also formulated certain guidelines and held:

Page | 7

“19… Nonetheless, we reiterate that such powers of wide

amplitude ought to be exercised carefully in the context

of quashing criminal proceedings, bearing in mind:  (i)

Nature and effect of the offence on the conscious of

the society; (ii) Seriousness of the injury, if any; (iii)

Voluntary   nature   of   compromise   between   the

accused   and   the   victim;   &   (iv)   Conduct   of   the

accused persons, prior to and after the occurrence of

the   purported   offence   and/or   other   relevant

considerations.”                     

                                                                          [Emphasis Applied]

12. In view of the settled proposition of law, we affirm the decision of

this Court in Ramgopal (Supra) and re­iterate that the powers of this

Court   under   Article   142   can   be   invoked   to   quash   a   criminal

proceeding   on   the   basis   of   a   voluntary   compromise   between   the

complainant/victim and the accused.

13. We, however, put a further caveat that the powers under Article

142 or under Section 482 Cr.P.C., are exercisable in post­conviction

matters only where an appeal  is pending before one or the other

Judicial forum. This is on the premise that an order of conviction does

not   attain   finality   till   the   accused   has   exhausted   his/her   legal

remedies and the finality is sub­judice before an appellate court. The

pendency of legal proceedings, be that may before the final Court, is

sine­qua­non  to   involve   the   superior   court’s   plenary   powers   to   do

complete justice. Conversely, where a settlement has ensued post the

attainment of all legal remedies, the annulment of proceedings on the

basis of a compromise would be impermissible. Such an embargo is

Page | 8

necessitated   to   prevent   the   accused   from   gaining   an   indefinite

leverage, for such a settlement/compromise will always be loaded with

lurking suspicion about its bona fide. We have already clarified that

the purpose of these extra­ordinary powers is not to incentivise any

hollow­hearted agreements between the accused and the victim but to

do complete justice by effecting genuine settlement(s).

14. With respect to the second question before us, it must be noted

that even though the powers of this Court under Article 142 are wide

and far­reaching, the same cannot be exercised in a vacuum. True it is

that ordinary statutes or any restrictions contained therein, cannot be

constructed  as  a  limitation  on  the  Court’s  power  to  do  “complete

justice”. However, this is not to say that this Court can altogether

ignore the statutory provisions or other express prohibitions in law. In

fact, the Court is obligated to take note of the relevant laws and will

have to regulate the use of its power and discretion accordingly. The

Constitution Bench decision in the case of Supreme Court Bar Assn.

v.   Union   of   India   &   Anr6 has   eloquently   clarified   this   point   as

follows:

“48. The  Supreme  Court   in exercise  of  its  jurisdiction

under Article 142 has the power to make such order as

is necessary   for   doing   complete   justice “between   the

parties in any cause or matter pending before it”. The

very nature of the power must lead the Court to set limits

for   itself   within   which   to   exercise   those   powers   and

6 (1998) 4 SCC 409, ¶ 48

Page | 9

ordinarily   it   cannot   disregard   a   statutory   provision

governing   a   subject,   except   perhaps   to   balance   the

equities between the conflicting claims of the litigating

parties by “ironing out the creases” in a cause or matter

before it. Indeed this Court is not a court of restricted

jurisdiction of only dispute­settling. It is well recognised

and established that this Court has always been a lawmaker and its role travels beyond merely dispute­settling.

It   is   a   “problem­solver   in  the   nebulous   areas”   (see K.

Veeraswami v. Union of India [(1991) 3 SCC 655 : 1991

SCC (Cri) 734] but the substantive statutory provisions

dealing with the subject­matter of a given case cannot be

altogether ignored by this Court, while making an order

under Article 142. Indeed, these constitutional powers

cannot,   in   any   way,   be controlled by   any   statutory

provisions but at the same time these powers are not

meant   to   be   exercised   when   their   exercise may   come

directly in conflict with what has been expressly provided

for in a statute dealing expressly with the subject.”

15. Ordinarily,   when   dealing   with   offences   arising   out   of   special

statutes   such   as   the   SC/ST   Act,   the   Court   will   be   extremely

circumspect  in   its   approach.  The   SC/ST   Act  has  been  specifically

enacted to deter acts of indignity, humiliation and harassment against

members of Scheduled Castes and Scheduled Tribes. The Act is also a

recognition of the depressing reality that despite undertaking several

measures,   the   Scheduled   Castes/Scheduled   Tribes   continue   to   be

subjected to various atrocities   at the hands of upper­castes. The

Courts have to be mindful of the fact that the Act has been enacted

keeping in view the express constitutional safeguards enumerated in

Articles 15, 17 and 21 of the Constitution, with a twin­fold objective of

Page | 10

protecting the members of these vulnerable communities as well as to

provide relief and rehabilitation to the victims of caste­based atrocities.

16. On the other hand, where it appears to the Court that the offence

in   question,   although   covered   under   the   SC/ST   Act,   is   primarily

private or civil in nature, or where the alleged offence has not been

committed   on   account   of   the   caste   of   the   victim,   or   where   the

continuation of the legal proceedings would be an abuse of the process

of law, the Court can exercise its powers to quash the proceedings. On

similar lines, when considering a prayer for quashing on the basis of a

compromise/settlement, if the Court is satisfied that the underlying

objective of the Act would not be contravened or diminished even if the

felony in question goes unpunished, the mere fact that the offence is

covered under a ‘special statute’ would not refrain this Court or the

High Court, from exercising their respective powers under Article 142

of the Constitution or Section 482 Cr.P.C.

17.  Adverting to the case in hand, we note that the present Appellant

has been charged and convicted under the unamended Section 3(1)(x)

of the SC/ST Act7

, which was as follows: 

“3.   Punishments   for   offences   of   atrocities­  (1)

Whoever, not being a member of a Scheduled Caste or a

Scheduled Tribe,—

 xxxx 

7 Section 3(1)(x) of the Act stands substituted by Act No. 1 of 2016 w.e.f. 26.01.2016.

Page | 11

(x)   intentionally   insults   or   intimidates   with   intent   to

humiliate a member of a Scheduled Caste or a Scheduled

Tribe in any place within public view;

xxxx"

18. We may hasten to add that in cases such as the present, the

Courts ought to be even more vigilant to ensure that the complainantvictim has entered into the compromise on the volition of his/her free

will and not on account of any duress. It cannot be understated that

since members of the Scheduled Caste and Scheduled Tribe belong to

the weaker sections of our country, they are more prone to acts of

coercion,   and   therefore   ought   to   be   accorded   a   higher   level   of

protection. If the Courts find even a hint of compulsion or force, no

relief can be given to the accused party. What factors the Courts

should consider, would depend on the facts and circumstances of each

case.

19. Having considered the peculiar facts and circumstances of the

present case in light of the afore­stated principles, as well as having

meditated on the application for compromise, we are inclined to invoke

the   powers   under   Article   142   and   quash   the   instant   Criminal

proceedings with the sole objective of doing complete justice between

the parties before us. We say so for the reasons that: 

Firstly,  the very purpose behind Section 3(1)(x) of the SC/ST is to

deter caste­based insults and intimidations when they are used with

Page | 12

the intention of demeaning a victim on account of he/she belonging to

the Scheduled Caste/  Scheduled Tribe community. In the present

case, the record manifests that there was an undeniable pre­existing

civil dispute between the parties. The case of the Appellant, from the

very beginning, has been that the alleged abuses were uttered solely

on account of frustration and anger over the pending dispute. Thus,

the   genesis   of   the   deprecated   incident   was   the   afore­stated

civil/property dispute. Considering this aspect, we are of the opinion

that it would not be incorrect to categorise the occurrence as one

being overarchingly private in nature, having only subtle undertones

of criminality, even though the provisions of a special statute have

been attracted in the present case.

Secondly,  the offence in question, for which the Appellant has been

convicted, does not appear to exhibit his mental depravity. The aim of

the SC/ST Act is to protect members of the downtrodden classes from

atrocious acts of the upper strata of the society. It appears to us that

although  the  Appellant may  not belong to   the  same  caste  as  the

Complainant,   he   too   belongs   to   the   relatively   weaker/backward

section of the society and is certainly not in any better economic or

social position when compared to the victim. Despite the rampant

prevalence of segregation in Indian villages whereby members of the

Scheduled Caste and Scheduled Tribe community are forced to restrict

Page | 13

their quartes only to certain areas, it is seen that in the present case,

the   Appellant   and   the   Complainant   lived   in   adjoining   houses.

Therefore, keeping in mind the socio­economic status of the Appellant,

we are of the opinion that the overriding objective of the SC/ST Act

would not be overwhelmed if the present proceedings are quashed. 

Thirdly, the incident occurred way back in the year 1994. Nothing on

record indicates that either before or after the purported compromise,

any untoward incident had transpired between the parties. The State

Counsel has also not brought to our attention any other occurrence

that would lead us to believe that the Appellant is either a repeat

offender or is unremorseful about what transpired. 

Fourthly, the Complainant has, on her own free will, without any

compulsion,   entered   into   a   compromise   and   wishes   to   drop   the

present criminal proceedings against the accused. 

Fifthly, given the nature of the offence, it is immaterial that the trial

against the Appellant had been concluded. 

Sixthly,  the Appellant and the Complainant parties are residents of

the same village and live in very close proximity to each other. We

have no reason to doubt that the parties themselves have voluntarily

settled their differences. Therefore, in order to avoid the revival of

healed wounds, and to advance peace and harmony, it will be prudent

to effectuate the present settlement.

Page | 14

CONCLUSION: 

20. Consequently, and for the aforementioned reasons, we find it

appropriate to invoke our powers under Article 142 of the Constitution

and quash the criminal proceedings to do complete justice between

the parties. As a sequel thereto, judgment and orders passed by the

Trial Court and the High Court are set aside. Bail bonds, if any, are

discharged. The appeal is allowed in above terms.

……………………….. CJI.

(N.V. RAMANA)

………..………………… J.

(SURYA KANT)

………..………………… J.

(HIMA KOHLI)

NEW DELHI

DATED: 25.10.2021

Page | 15

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

1

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

2

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

3

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

4

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

5

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.

6

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

7

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.

8

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

9

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.

10

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

11

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

12

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

13

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

14

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,

15

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

16

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

17

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

18

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

19

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.

20

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

21

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

22

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

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.

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]

25

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

1

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

2

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.

3

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

4

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

5

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

6

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.

7

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

8

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

9

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

10

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

11

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

12

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

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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

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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

15

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

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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

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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.

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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

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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

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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

21

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

22

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.

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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

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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

25

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. 

26

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 

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