HDFC BANK LTD THROUGH ITS BRANCH MANAGER & ORS. vs STATE NCT OF DELHI & ORS.

$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 04.01.2024
+ W.P.(CRL) 30/2024
HDFC BANK LTD THROUGH ITS BRANCH
MANAGER & ORS. ….. Petitioners
Through: Mr. Kunal Tandon, Mr. Ronnie Singh Brara and Mr. Rishi Gupta, Advocates

versus

STATE NCT OF DELHI & ORS. ….. Respondents
Through: Mr. Rahul Tyagi, ASC for the State with Ms. Priya Rai, Mr. Sangeet Sibou, Mr. Jatin, Mr. Aashish Chojar, Advocates and SI Ajit Singh, P.S. Prashant Vihar

CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J. (ORAL)
CRL.M.A. 251/2024 (exemption)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
CRL.M.A. 250/2024
3. By way of present application under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’), the applicant seeks following prayers:
“(a) pass an ad-interim ex-parte order staying any further investigation against the petitioners in the aforesaid FIR bearing No. 0390/2022 registered at P.S. Prashant Vihar under Sections 420/34 of the Indian Penal Code, 1860;

(b) in the alternative pass an ad-interim ex-parte order restraining the Investigation Officer from taking any coercive action whatsoever against the Petitioners and/or seeking presence of the Petitioners.”

4. Facts of the case, as per the complaint filed by the complainant Sh. Bharat Chawla are that he had bought one property in Prashant Vihar, New Delhi in November, 2013 from M/s Satya Sai Baba Associates Pvt. Ltd. through its Director Mr. Suresh Mahajan. In December, 2014, Mr. Suresh Mahajan had met the complainant and had asked him to become a guarantor for M/s Deepak Enterprises in order to help one Mr. Karamveer Singh to obtain loan facility from HDFC Bank and in return, he was assured monthly payment of Rs.1,50,000/- for a period of two years. On 05.02.2015, the complainant had gone to the bank and had signed certain documents and simultaneously the documents in respect of property which he had bought in Prashant Vihar were deposited with the bank on the understanding that after expiry of two years, the said titled documents would be returned to the complainant. It is stated that from February, 2015 till July, 2015 the complainant had received the payments in cash and after he had objected to receiving payments in cash and had asked for payments to be made in cheque, he not received any amount in August, 2015. Thereafter, the complainant was informed that Mr. Karamveer Singh had passed away, however, his son was well aware of the arrangement and he would honour the same. In April, 2016, the complainant had also met accused persons who had assured him that they will make regular payments and after two years, the name of complainant would be substituted in the records of HDFC Bank with someone else’s name as guarantor. It is alleged that despite assurances given, no payments were made to the complainant and in January, 2017, the complainant had asked him to return the property papers as the term of two years had lapsed. Thereafter, accused no. 7 had asked the complainant to help him find someone else who would be willing to stand as a guarantor. In January, 2018, the complainant was contacted by the accused persons to sign some papers for takeover of the loan by another bank, however, the complainant had refused to sign any document till the time he was not given assurance for return of his property documents. The complainant had thereafter called the accused on several occasions asking for his property documents, however, the same were never returned to him. It is alleged that in July, 2018, the complainant was contacted by the HDFC Bank and was informed that accused persons had stopped making payments and their loan account had been declared as NPA and that the bank was in process of initiating recovery proceedings against the accused as well as the guarantor i.e. the complainant herein. It is alleged that the complainant had informed the bank that his role as guarantor had come to an end in January, 2017, however, the bank officials had asked him to compel the accused to make the payments. In November, 2018, the complainant was served with a notice from Debt Recovery Appellate Tribunal after which he got to know that the bank had instituted a case before learned DRT-III and had shown the complainant as guarantor and had fasten the onus of recovery on the complainant herein. It is alleged that upon scrutinizing the documents filed by the bank before the learned DRT, the complainant had realised that several documents were containing forged signatures of the complainant. As alleged, such documents had the purport of not only extending the time period for which the guarantee had been given but also, allowing the bank to consistently increase the loan amount without even obtaining the consent of complainant/guarantor. It is the case of complainant that he was never even provided a copy of the documents that he was made to sign, nor was he even provided with the account statements regarding monthly payments being made by the accused to the bank. It is further alleged that the officials of the bank had acted in collusion with other accused for forging his signatures and increasing the loan disbursement thereby increasing the liability of complainant. On these allegations, the FIR No. 0390/2022 was registered at Police Station Prashant Vihar, Delhi under Sections 420/34 of Indian Penal Code, 1860, on 17.06.2022.
5. Learned counsel for the petitioner argues that the complainant has arraigned the petitioners as accused in the FIR, in their capacity of being “HDFC Bank Ltd. Through its Branch Manager”, HDFC Bank Ltd. through its Branch Operational Manager”, “Managing Director & Chief Executive Officer” and “Country head” respectively of HDFC Bank Ltd. without any iota of allegations or even meeting the requirements of the offence of cheating under Section 420 of IPC against the petitioners. It is stated that being the MD/CEO and Country Head respectively of HDFC Bank Ltd., the petitioners were in no conceivable way connected and/or directly involved in the day-to-day retail work/borrowings or in execution of the documents. It is argued that the impugned FIR is illegal and liable to be quashed as the complaint qua petitioners is an abuse of the process of law. It is contended that there is a prima facie case in favour of the petitioners and against the respondents and thus, this Court may direct the investigating agency to not take any coercive steps against the petitioners or may stay further investigation in the present case.
6. Learned ASC for the State on the other hand argues that the investigating agency is still conducting investigation in the present case. It is argued that in case the petitioners have any apprehension of arrest, they should seek appropriate remedy under law i.e. anticipatory bail and the present application seeking direction of no coercive steps or stay of investigation ought to be dismissed in view of the ratio laid down by the Hon’ble Apex Court in case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors. 2021 SCC OnLine SC 315.
7. This Court has heard arguments addressed by learned counsel for petitioners as well as learned ASC for the State and has gone through the material available on record.
8. From a perusal of complaint, this Court notes that the allegations against the present petitioners are that the complainant had discovered from the records filed by the Bank in the application before the learned DRT that the signatures of the complainant in some of the documents executed on 05.05.2015 i.e. supplementary letter of continuing guarantee dated 05.05.2015, declaration-cum-indemnity dated 05.05.2015, Memorandum of past transactions dated 05.05.2015, supplementary letter of continuing guarantee dated 22.12.2015, declaration-cum-indemnity dated 22.12.2015, Memorandum of past transactions of creation of mortgage by delivery of title deed dated 05.05.2015, had been forged. It is also alleged that the purport of these documents was to extend the guarantee which was never agreed between the parties and to increase the loan amount allegedly without the consent and knowledge of the complainant. There are also allegations that the bank officials, with whom the complainant’s property documents had been submitted, had acted in collusion with the other accused persons by forging his signatures and increasing the Loan Disbursement without obtaining the complainant’s consent.
9. In light of the relief sought by way of present application, this Court deems it appropriate to refer to the decision of the Hon’ble Apex Court in case of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors. 2021 SCC OnLine SC 315, whereby the Hon’ble Apex Court had cautioned the High Courts to not pass order of ‘no-coercive steps’ in petitions filed under Article 226 of Constitution of India or Section 482 of Cr.P.C. since the same essentially reduces such proceedings to the nature of anticipatory bails. The observations of the Hon’ble Apex Court in this regard read as under:
“64. We have come across many orders passed by the High Courts passing interim orders of stay of arrest and/or “no coercive steps to be taken against the accused” in the quashing proceedings under Section 482 Cr. P.C. and/or Article 226 of the Constitution of India with assigning any reasons. We have also come across number of orders passed by the High Courts, while dismissing the quashing petitions, of not to arrest the accused during the investigation or till the chargesheet/final report under Section 173 Cr. P.C. is filed. As observed hereinabove, it is the statutory right and even the duty of the police to investigate into the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be in police custody (popularly known as remand). Therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or “no coercive steps” would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the Cr. P.C. Therefore, such a blanket order is not justified at all. The order of the High Court must disclose reasons why it has passed an ad-interim direction during the pendency of the proceedings under Section 482 Cr. P.C. Such reasons, however brief must disclose an application of mind.
65. The aforesaid is required to be considered from another angle also. Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available. Therefore, in case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438 Cr. P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr. P.C. being satisfied, he may be released on anticipatory bail by the competent court. Therefore, it cannot be said that the accused is remediless. It cannot be disputed that the anticipatory bail under Section 438 Cr. P.C. can be granted on the conditions prescribed under Section 438 Cr. P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged. Still in case a person is apprehending his arrest in connection with an FIR disclosing cognizable offence, as observed hereinabove, he has a remedy to apply for anticipatory bail under Section 438 Cr. P.C. As observed by this Court in the case of Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453, though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. It is further observed that in entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 Cr. P.C. proceedings. It is further observed that on the other hand whenever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its powers under Article 226 of the Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. However, such a blanket interim order of not to arrest or “no coercive steps” cannot be passed mechanically and in a routine manner.
67. This Court in the case of Habib Abdullah Jeelani (supra), as such, deprecated such practice/orders passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482 Cr. P.C. In the aforesaid case before this Court, the High Court dismissed the petition filed under Section 482 Cr. P.C. for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest the petitioners during the pendency of the investigation. While setting aside such order, it is observed by this Court that such direction amounts to an order under Section 438 Cr. P.C., albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that ?it is absolutely inconceivable and unthinkable to pass an order directing the police not to arrest till the investigation is completed while declining to interfere or expressing opinion that it is not appropriate to stay the investigation. It is further observed that this kind of order is really inappropriate and unseemly and it has no sanction in law. It is further observed that the courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is further observed that it is the obligation of the court to keep such unprincipled and unethical litigants at bay.
***
71. Thus, it has been found that despite absolute proposition of law laid down by this Court in the case of Habib Abdullah Jeelani (supra) that such a blanket order of not to arrest till the investigation is completed and the final report is filed, passed while declining to quash the criminal proceedings in exercise of powers under Section 482 Cr. P.C., as observed hereinabove, the High Courts have continued to pass such orders. Therefore, we again reiterate the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and we direct all the High Courts to scrupulously follow the law laid down by this Court in the case of Habib Abdullah Jeelani (supra) and the law laid down by this Court in the present case, which otherwise the High Courts are bound to follow. We caution the High Courts again against passing such orders of not to arrest or – no coercive steps to be taken till the investigation is completed and the final report is filed, while not entertaining quashing petitions under Section 482 Cr. P.C. and/or Article 226 of the Constitution of India.”

10. The Hon’ble Apex Court in case of Siddharth Mukesh Bhandari v. The State of Gujarat & Anr. (2022) 10 SCC 525, while reiterating the ratio laid down in case of Neeharika Infrastructure Pvt. Ltd. (supra), had observed that orders regarding stay of investigation or no coercive steps can only be passed in rarest of the rare cases, while exercising powers under Section 482 of Cr.P.C. The relevant observations read as under:
“9. It appears from the impugned order passed by the High Court that the learned Single Judge has not properly appreciated and/or considered our earlier judgment and order passed in M/s. Neeharika Infrastructure Pvt. Ltd. (supra). Even the learned Single Judge has also not properly understood the ratio of the decision of this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra). It appears that the learned Single Judge seems to be of the opinion that after giving reasons, the High Court can grant an interim stay of further investigation in a petition seeking quashing of the criminal complaint filed under Article 226 of the Constitution read with Section 482 Cr.P.C. The High Court has not properly appreciated the principles and the law laid down by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra). 
10. What is emphasized by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra) is that grant of any stay of investigation and/or any interim relief while exercising powers under Section 482 Cr.P.C. would be only in the rarest of rare cases. This Court has also emphasized the right of the Investigating Officer to investigate the criminal proceedings. In our earlier judgment and order, in fact, we abstracted the principles laid down by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra) in paragraph 4. 
11. Despite the earlier judgment and order passed by this Court in the very criminal proceedings quashing and setting aside the earlier interim orders passed by the High Court, which came to be set aside by this Court, again, the learned Single Judge has granted the very same interim relief, which as observed hereinabove, can be said to be in teeth of and contrary to our earlier judgment and order in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra). We are not observing anything further as the learned Senior Advocates appearing on behalf of the original writ petitioners – accused have prayed not to pass any further reasoned order.”

11. The accompanying writ petition under Article 226 of the Constitution of India read with Section 482 of Cr.P.C. has been filed by the petitioners seeking quashing of FIR qua them, in which notice has been issued today by this Court.
12. However, this Court notes that the investigation in the present case is pending, the allegations pertains to offence of cheating and the chargesheet has not yet been filed. Having gone through the contents of the FIR, this Court is of the opinion that the present case cannot be prima facie categorized in the rarest of the rare cases where this Court would exercise its extraordinary jurisdiction to either stay the ongoing investigation or direct the investigating agency to not take any coercive steps against the accused persons including the petitioners. While being conscious of the decisions of Hon’ble Apex Court, as taken note of in the preceding paragraphs, this Court does not find it a fit case for staying the ongoing investigation. As far as prayer for no coercive steps is concerned, in case the petitioners apprehend any coercive action on part of investigating agency, they may avail appropriate remedy i.e. filing of anticipatory bail application and petitions under Article 226 of the Constitution of India or Section 482 of Cr.P.C. cannot be given the colour of anticipatory bail applications.
13. Thus, in view of foregoing discussion, the present application stands dismissed.
14. It is, however, clarified that nothing expressed herein above shall tantamount to an expression of opinion on merits of the case.
W.P.(CRL) 30/2024
15. The instant petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 has been filed on behalf of the petitioners seeking quashing of FIR bearing no. 0390/2022 registered at Police Station Prashant Vihar, Delhi for offence punishable under Sections 420/34 of Indian Penal Code, 1860 and all proceedings emanating therefrom.
16. Issue notice. Mr. Rahul Tyagi, learned ASC accepts notice on behalf of the State.
17. Issue notice to respondent nos. 2 to 5 through all permissible modes including electronically, on filing Process Fee within four weeks, returnable on 11.03.2024.
18. The order be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J
JANUARY 4, 2024/ns

W.P. (CRL) 30/2024 Page 1 of 12