If you have sufficient proof regarding your false complain then you can definitely go for quashing as well as discharge application. It's depends on the content of your complain and other proofs.
Discharge petition of charge sheet filed u/s 120 B rw 420 of IPC and 13(2) rw 13(1)(d)
I was Chief Manager of Indian bank a Nationalised Bank. I sanctioned Two Cash Credit loans to Firm A and Firm B against the primary securities of Hypothecation of stocks and collateral securities of valuable residential properties by EM. EM created in favour of the Bank and MOD registered. I sanctioned two home loans for purchasing Built houses to prop of firm A and firm B, after 3 months, obtaining all the parent documents, legal documents and all necessary papers. We issued DD in favour of the seller and houses were registered in the names of the borrowers. Due to field Inspection of the house properties, by the Assistant Engineer, Registrar office, the obtention of documents delayed for more than 1 month so EM/MOD could not be done at that time.In the meantime I was transferred to Punjab. The borrowers, knowing my transfer and willfully they refused to create EM/MOD after obtaining the registered documents. Further they vacated the firm premises after my relieving for punjab. Now the Bank filed complaint against me that I sanctioned two cash Credit loans for the non existent firms and i failed to obtain EM/MOD for the home loans. thus I colluded with the borrowers and made a loss to the bank FIR u/s 120 b rw 420 of IPC and 13(2) rw 13 (1) (d) of PC act 1988 and charge sheet filed. I have been summoned to appear on 14/10/2018. I have not received any money or obtained any advantage from the borrowers. I have evidences of Insurance policy for stocks, hypothecation agreement of stocks, Photos of stocks, rental agreement for firms, RCs for firms etc for prooving the existence of the firms, while I sanctioned the loans. With regard to the Home loans I have sanction Tickets issued by me to the borrowers with specific terms and conditions for them to create EM and to register MOD, duly signed by the borrowers. Agreement signed by the borrwers for creating EM and MOD. So the borrowers cheated us by refusing to create EM and MOD after agreeing the terms and conditions.Moreover all the accounts are recoverable since sufficient securities are available and there will not be any loss to the Bank. What can I do? Can I file discharge petition? Can I succeed? I had not demanded anything and accepted or obtained anything or any advantage. In the FIR, nowhere it is alleged that I damanded/accepted/obtained anything In the FIR it is wrongly alleged that myself and prop of Firm A are in real estate field without any evidence.
Asked 5 years ago in Criminal Law
Religion: Hindu
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
11 Answers
It is necessary to peruse complaint filed by bank and charge sheet filed against you to advice
2) you can file discharge application if you have followed the procedure in sanction of loan
3) there is no evidence that you have obtained any pecuinary benefits in sanction of loan
4) there is no evidence that you are in real estate field
5) you should be discharged by trial court
1. Your weak point in the matter is that the DDs for the housing loans should have been handed over to the builders at the time of registration of the houses and thereafter 2 IGs in connection with the said registration of saloe deeds should have collected by you. Keeping in possession of the said two IGs (wherein the buyers would sign authorising you to collect the original sale deeds after signature of the Registrar and other registration process is over) amounts to keeping in possession the related sale deeds in original. Simple deposition of original sale deed creates equatable mortgage of the property mentioned in the said deed.
2. However, since the said firms are proprietorship firms (or partnership firms) and if the properties mortgaged by the owners of the said firms cover their home loans also, the loan given by you towards CC account and also home loan are covered by the value of the mortgaged properties.
3. You shall have to contest the FIR fittingly by filing written reply to the said FIR.
4. Once charge sheet is filed you can find out loopholes in the said charge sheet and file a petition for quashing the FIR accordingly.
Dear Client,
Going through above facts, you should file discharge application if rejected than apply for quashing of trail in HC.
Your best defense is, no lapse in procedure and documentation and in the meantime you were transferred , lost the capacity to execute EM and MOD.
No evidence of gratification received neither proved it`s in your routine while in job. Single incident.
Mere allegation has no credence, FIR has to be proved that u r engaged in real state business and with firm A.
Since all those items what you have narrated can be taken up only during trial and it also depends on the discretion of the court to consider your explanation or not for the charges against you under said sections of law.
There is nothing wrong in filing discharge petition however you may have to wait for the charge sheet to be filed and the questioning of the charges are delayed.
The charges against you may be nullified only during the trial proceedings and not in discharge petition.
Yes you can file a discharge petition.
You may file a petition for quashing of the FIR if the charge sheet has not been filed.
Show that the prima facie facts as alleged against you are wrong and hence the FIR is liable to be quashed.
Get in touch with some able local lawyer.
Regards
I have planned for filing FIR Quash petition and it was to be filed on 01/10/2018. But since I received summons to appear on 12/10/2018, now I pan to file discharge petition. On knowing the borrowers collected the documents from Registrar office, without the knowledge of the Bank, I filed objection memo with Sub Registrar office requesting them not to create any encumbrance over the property. I wrote lettters instructing the borrowers to submit the documents and to register MOD. otherwise criminal action would be initiated against them. I received copy documents from SRO. police obtained the original documents from the borrowers and kept with them. So SARFAESI action can be initiated against the Home properties and there will not be any loss to the Bank for the Home Loans. 2 cash credit loans are backed by more than sufficient valuable securities. So there will not be any loss to the bank, even they vacated the firms. I have obtained Assets and Liabilities of the borrowers, which show so much of valuable properties and ABJ suit also can be filed against them for recovery. Now Can I succeed in filing Charge sheeet? Whatis the probability? or I have to face the trial to come out? Please reply.
Asked 5 years ago
Quashing is to be done only in exceptional circumstances
2) HC is reluctant to quash FIR and charge sheet
3) it is better you file for discharge before trial court
Now discharge applcaiton will file as charge sheet already filed so no quashing of FIR but trail.
SARFAESI will initiate on declaring NPA and on mortgage properties, no other assets.
If no complete recovery through SARFAESI act than recovery suit.
Probability can be examine on perusal of charge sheet
What actions you have taken is to protect the bank's interests to recover the loan.
But this will not be sufficient for the court to decide about discharging you from the alleged charges.
The bank advocate i.e., through the Public prosecutor should file an affidavit stating that action initiated by the accused to recover the amount and the amount has thus been secured, to be filed before court and it may give its NOC for this discharge petition.
However it is the discretion of the court to accept the statement of the defacto complaint or not to consider your discharge petition.
FIR quashing can not be filed if the charge sheet has been filed, therefore you may just file the discharge petition now or later a petition for quashing of the charge sheet in the HC.
Please share the FIR/ CS for a concrete opinion.
Prima facie it seems that you do have a strong case.
Regards
1. If Police has collected the said original Title Deeds from the Borrowers and you have the evidence of the same then you can take up he matter with police for submitting the same with the bank.
2. SARFAESI action can be initiated claiming possession of the mortgaged property u/s13(4) of the Act and equatable mortgage of a property is considered only when original title deed of the same is kept under deposit by the mortgagee bank.
3. In your case, the borrowers can file SARFAESI Application (S.A.) before DRT after receiving the possession notice u/s13(4) of the Act and in that case your bank will not be able to submit the original title deeds of the properties, which are in custody of the police,to prove their mortgage with your bank.
4. Filing civil suit or Original Application (O.A.) before the DRT by the Bank for attaching the properties of the borrowers for selling the same for recovering their outstanding loan amount will take ages.
5. Charge sheet is to be filed by the Police after investigating in the allegation/charges levelled against you. Your only weak point is not collecting the IGR after registering the deeds which you shall have to substantiate convincingly before the Court.
6. In any case you shall have to face the trial and come out of the charges framed against you by contesting the case fittingly.