Smt. Justice Rai Chattopadhyay

Hon’ble High Court held that it appears that the petitioner who in discharge of his bona fide duty, being the employee of the bank, which is admittedly a secured creditor, has entered the premises of the secured asset /property in exercise of the power vested on him by law, cannot be entangled with the liability of criminality in absence of any actus reus or mens rea on their part, in discharging that function, as alleged against him in this case. It is also settled that a defaulter borrower holds the secured asset, in this case the residence of the defacto-complainant, only in trust or symbolic possession, and even if the petitioner has entered into the said property cannot be marked out as trespassers in ‘other’s’ property. It is also well settled now, that an ‘appeal’ under the provisions of the SERFAESI Act, and not any criminal proceeding against the recovering creditor, would be the proper and only available course of action available to the borrower, in a case of like nature.