Aadhar Rice Mill Pvt. Ltd v. The State of Jharkhand

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners For the State Oral Order ----- : M/s Sumeet Gadodia & Ritesh Kr. Gupta, Advocates : Mr. Vishwanath Roy, S.P.P. ----- 07 / Dated : 07.11.2023

The summoning order dated 21.08.2018 passed in Complaint Case No. 2345 of 2017 under Sections 199, 255, 406, 452, 465, 466, 467, 471 and 34 of the I.P.C is under challenge in the instant criminal misc. petition.

The petitioner No.1 is the Company and petitioner Nos. 2 to 5 are its Directors. The petitioner company purchased an area measuring 0.93 acres of land from one Shiv Shankar Mahto in the year 2009.

As per the case of the complainant, she was a business woman and partner of Reliable Enterprises and also the proprietor of Dutsun Technologies and all her business were looked after by her husband Subodh Dutta. In order to take loan from the Bank, Complainant had entered into an agreement with Shiv Shankar Mahto on 10.04.2009 wherein he had agreed to mortgage his property with the Bank and stands as a guarantor with the complainant so that she could take loan. This complainant had agreed to pay him Rs.7,00,000/- for the said favour. In pursuance of the said agreement the complainant took loan from Syndicate Bank, Sakchi Branch in which Shiv Shankar Mahto stood as a guarantor but despite this, he sold a part of the mortgaged property to the Petitioners who have been arrayed as accused nos. 2, 4, 5, 6 and 7.

In the enquiry, statements of the complainant and two witnesses were recorded based on which the summoning order has been issued.

It is submitted by learned counsel for the petitioners that the petitioners were bona fide purchasers of the land from Shiv Shankar Mahto without any notice that said piece and parcel of land was mortgaged with the Bank or not. The petitioners had purchased the property for value and after said purchase, the same has been duly mutated in the name of the Company in Mutation Case No. 41 of 2009-10. The case of the petitioners is squarely covered by the ratio laid down by the Hon’ble Supreme Court in Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751.

Notice in this case had been issued to the complainant and duly served but till date none had appeared on behalf of the complainant-opposite party no. 2.

Learned counsel for the State has defended the impugned order and submitted that the summoning order has been issued on the basis of the statements of the complainant and enquiry witnesses.

From plain reading of the complaint petition, it is apparent that the petitioners are the purchaser of part of the land which is said to have been mortgaged by the guarantor in favour of the bank. The bank has not moved or filed complaint against the guarantor for executing the sale deed. The land has been purchased and duly mutated in the name. Even if it is assumed that the averments made in the complaint are true, no offence will be made out against these petitioners as they were not privy to tripartite contract between the Bank, Complainant and the the Gurantor. The case is covered by the ratio laid down in Mohd. Ibrahim (supra). To permit the continuation in the instant proceeding against these petitioners will be an abuse of the process of Court. Under the circumstance, the summoning order dated 21.08.2018 passed in Complaint Case No. 2345 of 2017 is quashed so far as the petitioners, above named, are concerned. Instant Cr. Misc. Petition is allowed. I.A. No. 7108 of 2019 stands disposed of. (Gautam Kumar Choudhary, J.) AKT/Satayendra Uploaded