9911796707
TMI Blog2012 (4) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... application is allowed and the petition is restored to its original number. 3. The application stands disposed of. Crl. MC No.867/2012 & Crl.MAs 3032-33/2012 1. This is a petition under Section 482 Cr.PC assailing the order dated 18.2.2012 passed by learned ASJ whereby the revision petition against the order dated 19.7.2011 passed by learned MM was dismissed. 2. The Small Investment Development Bank of India (SIDBI) filed a complaint against the petitioner under Section 138/141/142 of Negotiable Instruments Act on account of dishonour of two cheques of Rs. 20 lac and Rs. 2.5 lac and for non-payment of the cheques amounts despite legal notice dated 4.9.1997. The petitioners were summoned in the said complaint case as accused. In the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t what could be acquired through assignment was the financial assets, which would mean that certain facilities of financial nature extended by assignor and that the chqeue was not a financial asset or a specie thereof. Secondly, that the assignment which was recognized under Order 22 Rule 10 CPC entitled the assignee to pursue its remedy under the civil law and not in the proceedings of criminal nature. It was submitted that the proceedings of the criminal nature do not come within the ambit of Section 5(4) of the SARFAESI Act. 4. I have heard learned counsel for the petitioner. Both the points which have been raised in assailing the impugned orders of the courts below do not have any merit. The relevant provisions of law under SARFAESI Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such bank or financial institution shall, after the acquisition of the financial assets, be of as full force and effect against or in favour of the securitisation company or reconstruction company, as the case may be, and may be enforced or acted upon as fully and effectually as if, in the place of the said bank or financial institution, securitisation company or reconstruction company, as the case may be, had been a party thereto or as if they had been issued in favour of the securitisation company or reconstruction company, as the case may be. (4) If, on the date of acquisition of financial asset under sub- section (1), any suit, appeal or other proceeding of whatever nature relating to the said financial asset is pending by or agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes a lender of the financial assets in place of SIDBI and thus, has all the rights of SIDBI in relation to the financial assets which were acquired by it. The contention of the learned counsel for the petitioner that no financial facility was extended by SIDBI to ISARC and so the cheques in question would not be financial assets within Sub-section (2), is highly misplaced. SIDBI had advanced certain loans to the petitioners, who in discharge of their liability had issued the aforesaid cheques, which on presentation got dishonoured. By virtue of assignment deed, the financial interest mentioned therein, including the recovery of the loan amounts, would fall within the ambit of Sub-section (2). Consequently, any cheque given by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner could be continued by ISARC. 7. To say that ISARC was neither the payee nor holder in due course of the said chqeues and thus, was not competent to be substituted in place of SIDBI under Section 142 of the N.I.Act is again misplaced. Certainly, the ISARC was not payee of the cheques in question which were issued by the petitioner in favour of SIDBI. However, as per Section 9 of N.I.Act read with Section 5 of the SARFAESI Act, the ISARC would be holder in due course since what was acquired by virtue of assignment deed was for consideration. As per Section 9 of the N.I.Act, 'holder in due course' meant any person, who for consideration becomes possessor of cheque etc. or the payee or the endorsee thereof. There cannot be any d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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