P. Elango vs ICICI Bank Ltd.

C.S.Karnan, J.—The above criminal original petition has been filed by the Petitioner/accused to call for the records and to quash the proceedings pending against him in C.C. No. 12485 of 2006, on the file of the learned III Metropolitan Magistrate, George Town, Chennai.

The short facts of the case are as follows

The Respondent/complainant would submit that the accused had approached the office of the complainant and requested them to grant the personal loan. After completing the necessary legal formalities, they sanctioned the loan of Rs. 45,000/-to the accused vide agreement No. LPTR100001110126. After taking the loan under the aforesaid scheme, the Petitioner/accused had executed a loan agreement in favour of the complainant Bank. Under the said agreement, he had agreed to repay the personal loan in 36 equated monthly installments of Rs. 1,742/-and to show his bonafide he had promised to pay the monthly installment in favour of the complainant Bank. The personal loan was disbursed on 31.03.2003. The Petitioner/accused had delivered to complainant the aforesaid filled cheques towards payment of dues outstanding against the accused. He had also made an assurance that the aforesaid filled cheques shall be honoured by the Bankers and the same shall be returned as unpaid. Accordingly the complainant Bank had presented the cheque for collection of payments through their Bankers. But, the same has been dishonoured by the accused Bankers and the amount of the Principle is pending for a sum of Rs. 34,817/-excluding the bounce charges and the interest agreed by the accused. Therefore, the Petitioner/accused had become the chronic defaulter in payment and also violated the agreement made with the complainant. The Respondent/complainant would submit that the Petitioner/accused with the criminal intention of cheating and misappropriated the money belongs to the complainant. Further, the complainant came to know that the accused was not trust worthy person nor he will pay the amount received from the complainant. Since, the Petitioner/accused become the defaulter in payment of monthly installment for the above said personal loan, the Respondent/complainant requested the accused to pay the money. Thereby, the accused punishable u/s 420 of I.P.C. and misappropriated the money belonging to the complainant thereby committed an offence u/s 406 of I.P.C.

The learned Counsel for the Petitioner argued that the Petitioner and the Respondent had made an agreement for a personal loan of a sum of Rs. 45,000/-and the Petitioner promising to repay in 36 equal monthly instalments ie. Rs. 1,742/-per month. The Respondent had also presented the cheques and the same was returned as such the Respondent has filed a private complaint before learned Magistrate as offence under Sections 420 and 406 I.P.C. Further, the learned Counsel argued that the loan transaction had taken place on the strength of a personal loan agreement vide No. LPTR100001110126, dated 31.03.2003, besides post dated cheques, so the said money transaction is purely covered under civil nature. As such, the private complaint in C.C. No. 12485 of 2006, pending on the file of the learned III Metropolitan Magistrate, George Town, Chennai is not sustainable under law, since it is not covered under a criminal nature, as on the ground of cheating. Further the learned Counsel argued that the Petitioner working as a Junior Assistant at Bharadhidasan University in Trichi. He is suffering from heart ailment. Further, the learned Counsel has cited a judgment of this Court in a batch case of Crl.O.P. Nos. 4962, 28614, 29107, 24126, 23228, 25970, 26393, 29108, 26575, 30291, 6660, 26576, 26673 of 2006; 10252, 10304, 10868, 10895, 10899, 11319, 11337, 11716, 11992, 12006, 12297, 12304, 12395, 12536, 12613, 13394, 15970, 15972, 16251, 16710, 16747, 16896, 19379, 19834, 19922, 20152, 20206, 20827, 21043, 21365, 21832, 22388, 22514, 22572, 22647, 22699, 23727, 24198, 24241, 24596, 25030 and 25750 of 2007. The operative portion of this judgment is as follows

This Court is also well aware of the principle of law laid down by the Hon''ble Apex Court Manager, ICICI Bank Ltd. Vs. Prakash Kaur and Others, , wherein the Hon''ble Apex Court has quashed all the First Information Reports and the investigation initiated mainly on the ground that the bank, namely the complainant offered to restore recovery on certain acceptable terms. In these matters also, the Respondent/bank has taken out a wise decision and decided not to pursue the criminal proceedings in respect of those matters with a view to initiate appropriate legal proceedings in a manner known to law. Therefore, in view of the specific submissions made by the learned Counsel for the Respondent/complainant to the effect that the Bank is not interested in pursuing the matter and already the learned Counsel has received instructions to withdraw the respective complaints pending before the learned Judicial Magistrate Court, this Court is of the considered view that instead of undergoing for such empty formality, no prejudice would be caused to the bank, if all the proceedings pending on the file of the respective learned Metropolitan Magistrates were quashed on the basis of the above said development in all these matters.

Accordingly, all these Criminal Original Petitions are allowed and the proceedings initiated against the Petitioners have been quashed in respect of the cases pending on the file of the respective learned Magistrates. It is also made clear that even in respect of the cases wherein the learned Counsel for the Respondent/complainant submitted that already the learned Counsel appearing before the learned trial Magistrate has made submission to withdraw the complaints if those complaints were not withdrawn till date this order is applicable to those cases also. Before parting with these matters, it is made clear that it is open to the Respondent/complainant bank to take appropriate legal action, if they desire in accordance with law, as per the procedure known to law, for the recovery of any dues from the Petitioners herein. Consequently, connected miscellaneous petitions are closed

Therefore, the learned Counsel prays before this Court to quash the proceedings pending against the Petitioner in C.C. No. 12485 of 2006, on the file of the learned III Metropolitan Magistrate, George Town, Chennai.

The learned Counsel appearing for the Respondent argued that as per Petitioner, who had promised at the time of availing the loan that he would pay the loan amount with accrued interest thereon on the monthly basis. Now, the Petitioner has changed his intention in order to cheat the Respondent. Further the learned Counsel argued that the Petitioner''s cheque was dishonoured after presenting for payment, the same was informed to the Petitioner, even though he has not come forward to pay the said loan amount. This type of behaviour is only intended to cheat the Respondent, as such, the criminal case has been filed. In order to prove the said case two documents were listed namely loan agreement and statement of account. Therefore, the learned Counsel prays to dismiss the above petition.

In view of the facts and circumstances of the case and arguments advanced by the learned Counsel appearing on either side and the judgment of this Honourable Court rendered by my Lord Senior Judge Mr. Justice K.N.Basha, this Court is of the view that on the basis of the personal loan agreement in agreement No. LPTR 100001110126, the said transaction had taken place. So, the agreement is covered under contract act. On the strength of this agreement, the Respondent/complainant is at liberty to recover the loan amount with accrued interest and cost. Instead of that the complainant has filed the complaint against the accused/Petitioner before the learned Magistrate on the ground of cheating u/s 420 and 406 I.P.C. which is not sustainable under law. The said complaint is a misconceived one, since the civil law duly permits the Respondent/complainant to recover the money. Therefore, the Criminal Original Petition is allowed. It is open to the Respondent/complainant to initiate legal proceedings for the recovery of money as per law.

In the result, the above Criminal Original Petition is allowed and the complaint in C.C. No. 12485 of 2006, pending on the file of the learned III Metropolitan Magistrate, George Town, Chennai is quashed. Consequently, connected miscellaneous petition is closed.