MRS. PRIYANKASRIVASTAVAANDANOTHER versus STATE OF U.P.AND OTHERS

Citation: [2015] 4 S.C.R. 108 · Decided: 19-03-2015 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2015]4S.C.R.108 
A 
MRS. PRIYANKASRIVASTAVAANDANOTHER 
B 
c 
v. 
STATE OF U.P.AND OTHERS 
(Criminal Appeal No. 781 of 2012) 
MARCH 19, 2015 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
Code of Criminal Procedure, 1973: s. 156(3) - Power 
under, scope- Borrower-respondent no.3 who defaulted in 
repayment of Joan and against whom action under 
SARFAESJ Act was taken filed criminal cases against the 
D bank officials - Borrower and the bank officials entered one 
time settlement with stipulation to withdraw various cases -
Borrower had filed another application u/s. 156(3) alleging 
cheating against the bank officials and FIR was registered in 
that complaint- Jn the 0 TS, borrower did not disclose about 
E the said FIR-Appellants-bank officials moved High Court-
High Court refused to interfere - Held: The FIR is liable to 
be quashed - The purpose of respondent no.3 was to only 
harass the appellants with the sole intent to avoid the payment 
of loan - The Magistrate should have kept himself alive to 
F the provision relating to protection of action against secured 
creditors or any of its officers before venturing into directing 
registration of the FIR u/s. 156(3) - SARFAESJ Act. 
G 
H 
Allowing the appeal the Court 
HELD: 1. When a borrower of the financial 
institution covered under the SARFAESI Act, invokes 
the jurisdiction under Section 156(3) Cr.P.C. and also 
there is a separate procedure under the Recovery of 
108 
PRIYANKA SRIVASTAVA AND ANR. v. STATE OF U. P. 109 
AND OTHERS 
Debts due to Banks and Financial Institutions Act, 1993, A 
an attitude of more care, caution and circumspection has 
to be adhered to. Issuing a direction stating "as per the 
application" to lodge an FIR creates a very unhealthy 
situation in the society and also reflects the erroneous 
approach of the Magistrate. It also encourages the B 
unscrupulous and unprincipled litigants, like respondent 
no.3, to take adventurous steps with courts to bring 
the financial institutions on their knees. Respondent no. 
3 had prosecuted the earlier bank authorities and after C 
the matter was dealt with by the High Court in a writ 
petition recording a settlement, he did not withdraw the 
criminal case and waited for some kind of situation where 
he could take vengeance. During the tenure of appellant 
No.1, who is presently occupying the position of Vice- o 
President, neither the loan was taken, nor the default 
was made, nor any action under the SARFAESI Act was 
taken. However, the action under the SARFAESI Act was 
taken on the second time at the instance of appellant 
No.1. The devilish design of the respondent No.3 was E 
to harass the appellants with the sole intent to avoid 
the payment of loan. [Paras 24, 25 and 26] [132-F-H; 
133-A-C] 
2. The power under Section 156(3) warrants F 
application of judicial mind. It is not the police taking 
steps at the stage of Section 154, Cr.P.C. A litigant at his 
own whim cannot invoke the authority of the Magistrate. 
A principled and really grieved citizen with clean hands 
must have free access to invoke the said power. It G 
protects the citizens but when pervert litigation takes 
this route to harass their fellows citizens, efforts are to 
be made to scuttle and curb the same. A stage has come 
in this country where Section 156(3) Cr.P.C. applications H 
110 
SUPREME COURT REPORTS 
[2015] 4 S.C.R. 
A are to be supported by an affidavit duly sworn by the 
applicant who seeks the invocation of the jurisdiction 
of the Magistrate. That apart, in an appropriate case, the 
Magistrate would be well advised to verify the truth and 
also can verify the veracity of the allegations. This 
8 affidavit can make the applicant more responsible. 
Such kind of applications are being filed in a routine 
manner without taking any responsibilitywhatsoever 
only to harass certain persons. That apart, it becomes 
C more disturbing and alarming when one tries to pick up 
people who are passing orders under a statutory 
provision which can be challenged under the 
framework of said Act or under Article 226 of the 
Constitution of India. But it cannot be done to take 
o undue advantage in a criminal court as if somebody is 
determined to settle the scores. There has to be prior 
applications under Section 154(1) and 154(3) while 
filing a petition under Section 156(3). Both the aspects 
should be clearly spelt out in the application and 
E necessary documents to that effect shall be filed. The 
direction that an applica

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