# Vinod Kumar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 5 ILRA 1265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-09
- **Case number:** Application u/s 482 No. 35636 of 2018
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-v-state-of-u-p-anr-opp-parties-52029
- **Pages:** 3

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Applicant- Branch
Manager- Complaint Case - Indian Penal
Code, 1860 - Section 417, 504 & 506 -
Complainant-
Auction
Purchaser-
Proceedings
against
borrower
under
SARFAESI Act- Symbolic possession taken
under Section 13(4) of SARFAESI Act-
Application under Section 14 of the
SARFAESI Act for physical possession-
Auction
purchaser-
Allegation
of
misrepresentation regarding possession of
the
property
against
the
applicant-
Symbolic possession is a possession under
law- Possession taken in 2012 itself-
Auction in 2016- Action of the applicant in
exercise of statutory powers is protected
by Section 32 of SARFAESI Act- No criminal
proceedings or prosecution can be lodged
against Officer of the Bank- Criminal
proceedings against the applicant set aside
- Application allowed (Para - 6, 7, and 8)
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD: Once the bank has declared in the auction
notice that they are taken possession of the
property in question under Section 14 of the
SARFAESI Act, it is not open for the purchaser to
raise objection in respect of the application of
bank under Section 14 of the SARFAESI Act being
pending before the District Magistrate which are
only execution proceedings in respect of the
order of possession passed under Section 13(4)
of the SARFAESI Act. (Para 7)

It is further to be seen that the applicant was the
Branch Manager and was exercising statutory
powers under SARFAESI Act and as such he is
protected by Section 32 of the SARFAESI Act and
no criminal proceedings or prosecution can be
lodged against the applicant, who is an Officer of
the Bank. (Para 8)

Application allowed. (E-14)

## Text

5 All. Vinod Kumar Vs. State of U.P. & Anr.
1265
justice to interfere in the order dated
15.07.2022 passed by the sole Arbitrator
dropping the arbitration proceedings for
want of jurisdiction, although for different
reasons.

43. In the present case, the claimants
have purchased various portions of a property
that had been taken on lease by the respondent
no. 1 from M/s Rohtas Projects Limited, in
violation of the conditions of the registered
lease deed. Although there is no arbitration
agreement between the petitioners and the
respondent no. 1, the petitioners initiated
arbitration proceedings claiming payment of
arrears of rent and damages etc. The
proceedings under the IBC have been initiated
against the lessor M/s Rohtas Projects
Limited. A Resolution Professional has
already been appointed by the NCLT, New
Delhi. The respondents have deposited the
entire arrears of rent and damages etc. in the
National Company Law Tribunal and they
have already vacated the premises in dispute.

44. Jurisdiction of this Court under
Article 227 of the Constitution of India is
supervisory jurisdiction which should be
exercised to prevent injustice being caused
to a party but where the order under
challenge in the petition under Article 227 of
the Constitution of India does not cause any
injustice to any of the parties, this Court will
not exercise its discretion in such a case.
Keeping in view the circumstances stated in
the preceding paragraph, interfering in the
order dated 15.07.2022 passed by the Sole
Arbitrator and the order dated 30.01.2024
passed by the Commercial Court No. 1,
Lucknow will not serve the interest of
justice in any manner.

45. In view of the aforesaid
discussions, no interference is warranted in
the present petition filed under Article 227
of the Constitution of India.

46. Accordingly, the petition is
dismissed. Costs made easy.
----------
(2024) 5 ILRA 1265
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Application u/s 482 No. 35636 of 2018

Vinod Kumar ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Pashupati Nath Tripathi, Desh Ratan Chaudhary,
Hind Pratap Lal

Counsel for the Opp. Parties:
G.A., Ajay Kumar Pandey

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - Applicant- Branch
Manager- Complaint Case - Indian Penal
Code, 1860 - Section 417, 504 & 506 -
Complainant-
Auction
Purchaser-
Proceedings
against
borrower
under
SARFAESI Act- Symbolic possession taken
under Section 13(4) of SARFAESI Act-
Application under Section 14 of the
SARFAESI Act for physical possession-
Auction
purchaser-
Allegation
of
misrepresentation regarding possession of
the
property
against
the
applicant-
Symbolic possession is a possession under
law- Possession taken in 2012 itself-
Auction in 2016- Action of the applicant in
exercise of statutory powers is protected
by Section 32 of SARFAESI Act- No criminal
proceedings or prosecution can be lodged
against Officer of the Bank- Criminal
proceedings against the applicant set aside
- Application allowed (Para - 6, 7, and 8)
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD: Once the bank has declared in the auction
notice that they are taken possession of the
property in question under Section 14 of the
SARFAESI Act, it is not open for the purchaser to
raise objection in respect of the application of
bank under Section 14 of the SARFAESI Act being
pending before the District Magistrate which are
only execution proceedings in respect of the
order of possession passed under Section 13(4)
of the SARFAESI Act. (Para 7)

It is further to be seen that the applicant was the
Branch Manager and was exercising statutory
powers under SARFAESI Act and as such he is
protected by Section 32 of the SARFAESI Act and
no criminal proceedings or prosecution can be
lodged against the applicant, who is an Officer of
the Bank. (Para 8)

Application allowed. (E-14)

(Delivered by Hon'ble Vikram D. Chauhan, J.)

1. Heard learned counsel for the
applicants and learned AGA for the State.

1-A. No one has appeared on
behalf of opposite party no. 2. Previously on
05.03.2024, the opposite party no. 2 was
proceeded ex-parte.

2. This application under Section 482
Cr.P.C. has been filed by the applicants for
quashing the entire proceedings including
the summoning order dated 09.08.2018
passed
by Additional
Chief
Judicial
Magistrate, IXth, Varanasi in Complaint
Case No. 1865 of 2018 (Mohd. Akhlaq
Khan vs. Vinod Kumar) under Sections 417,
504, 506 IPC, P.S. Cantt, District Varanasi.

3. It is submitted by learned counsel for
the applicant that applicant is Branch
Manager
of
Allahabad
Bank.
The
proceedings against borrower was issued
under Securitization and Reconstruction of
Financial Assets and Enforcement of
Security Interest Act, 2002 (for short
'SARFAESI Act') by the Bank and thereafter
the symbolic possession of property in
question was taken on 30.07.2012. It is
further submitted that thereafter the property
in question was put to auction in terms of
Section 13(4) of SARFAESI Act and date of
auction was fixed as 30.04.2016.

4. Learned counsel for the applicant
submits
that
complainant
is
auction
purchaser and the complaint is filed with
allegation that the applicant being the
Branch Manager has represented the auction
purchaser that the property of the borrower
was taken possession by the bank and as
such the complainant participated in the
auction proceedings and deposited the
auction sale consideration. Subsequently, he
found that the bank was not in possession of
the property in question as the bank has
applied before the District Magistrate for
taking physical possession of the property in
question in terms of Section 14 of the
SARFAESI Act.

5. Learned counsel for the applicant
submits that act of the applicant was
statutory in nature and is protected by
Section 32 of SARFAESI Act as the same
was done in good faith. It is further
submitted by learned counsel for the
applicant that the possession of the property
in question was already taken on 30.07.2012
and the property was being sold on as is
where is basis in case of any dispute the
auction purchaser/complainant would have
remedy under provisions of SARFAESI Act.
He submits that the present criminal
proceedings
against
applicant
under
Sections 417, 504, 506 IPC are not tenable.

6. In the present case, it is to be seen
that the Allahabad Bank, who was the
secured creditor has initiated proceeding
under the SARFAESI Act against the
5 All. Vinod Kumar Vs. State of U.P. & Anr.
1267
borrower and in this respect symbolic
possession of the property was taken on
30.07.2012 in terms of Section 13(4) of the
SARFAESI Act. Once the possession is
taken, bank thereafter applied under Section
14 of the SARFAESI Act for execution of
the possession proceedings for taking actual
physical possession. Once an application
under Section 14 of the SARFAESI Act is
filed the same would relate to the provisions
of Section 13(4) of the SARFAESI Act and
actual possession would in no manner effect
the taking of possession in terms of Section
13(4) by way of symbolic possession. The
symbolic possession itself is the possession
under law and as such once the bank has
taken possession of the property in question
in the year 2012 itself and the auction notice
was issued on 18.03.2016 in respect of the
auction to be held on 30.04.2016, the
borrower was well aware of the fact that the
bank has taken possession in terms of
Section 13(4) of the SARFAESI Act as the
auction notice itself stated the aforesaid fact
in para-2, which is quoted herein below:

"And WHEREAS the borrower
having failed to repay the amount, and
hence, the undersigned, in exercise of
powers conferred U/S 13(4) of the said Act
read with Rule 8 of the Rules taken over
possession
of
the
property/properties,
(hereinafter referred as the said properties)
more fully described herein below on
30/07/2012."

7. Once the bank has declared in the
auction
notice
that
they
are
taken
possession of the property in question
under Section 14 of the SARFAESI Act, it
is not open for the purchaser to raise
objection in respect of the application of
bank under Section 14 of the SARFAESI
Act being pending before the District
Magistrate which are only execution
proceedings in respect of the order of
possession passed under Section 13(4) of
the SARFAESI Act.

8. It is further to be seen that the
applicant was the Branch Manager and was
exercising
statutory
powers
under
SARFAESI Act and as such he is protected
by Section 32 of the SARFAESI Act and no
criminal proceedings or prosecution can be
lodged against the applicant, who is an
Officer of the Bank.

9. In view thereof, the present
criminal proceedings against applicant are
bad in law, therefore, the summoning order
dated 09.08.2018 passed by Additional
Chief Judicial Magistrate, IXth, Varanasi in
Complaint Case No. 1865 of 2018 (Mohd.
Akhlaq Khan vs. Vinod Kumar) under
Sections 417, 504, 506 IPC, is hereby set
aside.

10. The present application under
Section 482
Cr.P.C.
is,
accordingly,
allowed.
----------
(2024) 5 ILRA 1267
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Appeal U/s 37 of Arbitration & Conciliation Act
1996 NO. 264 of 2023

Smt. Jasvinder Kaur ...Appellant
Versus
N.H.A.I. & Ors. ...Opp. Parties

Counsel for the Appellant:
Ms. Gunjan Jadwani, Ms. Chandrika Patel

Counsel for the Opp. Parties:
Mr. Pranjal Mehrotra