M/s Kalpesh Cotton Industries Pvt. Ltd vs STATE BANK OF INDIA on 1 September 2023

DEBTS RECOVERY TRIBUNAL-II AHMEDABAD NDN/1520/2022 M/s Kalpesh Cotton Industries Pvt. Ltd V/S STATE BANK OF INDIA 01.09.2023 None present for Applicant. The Applicant Mr. Vimalkumar Pravinchandra Parikh has filed complaint u/s 166, 195 and 340 of code of Criminal Procedure 1973 for initiation of prosecution against alleged accused/Respondent for commission of offence stated in application filed vide Diary number 1520 of 2022 on 27.07.2022. From perusal of his complaint and annexure made with the complaint, it is observed that he has challenged the order dated 13.08.2021 passed by Recovery Officer where in Recovery Officer has declined his prayer for initiation of proceeding u/s 340 of CrPC read with Sec 195 of Indian Penal Code. The objection was raised by registry that Application filed by Applicant is not in format of DRT Act and moreover the Application u/s 340 of CrPC is not maintainable. It was clearly stated in the objection raised by Registry that if the Applicant is not satisfied with order of Recovery officer, he could have filed Appeal against order of Recovery Officer by filing an appeal after making the payment of requisite court fees and 50% of certificate amount. The applicant instead of removing objections, filed a pursis justifying his action of filing Miscellaneous Application for Initiation of Action u/s 340 of CrPC. He has also quoted the judgement by Kerala High court in matter of Kuttiah vs Federal Bank Ltd on 21 March, 2006 and have also referred judgment of Madras High court passed in matter of T.Dhinakaran(Minor) vs Ranganathan However going through the judgement passed in matter of Kuttiah vs Federal Bank Ltd, it has been observed in Para 8 of the judgement that: “Section 195(1) imposed an inhibition on a Court to take cognizance of the different offences as enumerated therein except upon satisfaction of the conditions laid down therein. This is ensured by insisting on there being prosecution, only when the interest of public justice renders it necessary. The said provisions effectively interdict prosecution when public interest cannot be served. They provide protection to person from prosecutions on insufficient grounds and ensure that there shall be prosecution only when the Court, after due consideration, is satisfied that there is a proper case to put a party to trial.” It has been observed in Para 9 of the judgement that “It would be wholly unsafe to allow a private litigant to put the law in motion in relation to an offence falling under Chapter XI IPC. So much so, it is the predominant requirement of the public justice system that the prosecution of an alleged offender, referable to Chapter XI IPC, has to be determined by the justice delivery system itself. A recovery Certificate has been issued against applicant for more than Rs.8,03,67,696 as on 21.03.2017 as stated by Applicant in the complaint itself. The amount has increased multi fold since 2017. The applicant as certificate debtor instead of making payment of the certificate amount to the certificate holder bank, is trying to entangle the Certificate holder bank in multiple litigation.

Since the applicant has not removed objection raised by Registry till date despite the sufficient opportunity granted to him, his Miscellaneous Application 1520 of 2022 is declined to be registered and file be consigned to record.

Registrar DRT-II, Ahmedabad