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2000 DIGILAW 59 (KER)

Annamma Varghese v. Canara Bank

2000-01-28

K.V.SANKARANARAYANAN

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Judgment :- K. V. Sankaranarayanan, J. The petitioners in these two petitions are husband and wife. Both had accounts with the Canara Bank. They applied for 'Cancard' membership and were given Cancard facility with a floor limit of Rs. 5,000/-Both petitioners drew amounts availing the cancard facility in excess of the limits. They did not have sufficient funds in their savings bank accounts for adjustments. So, the bank sent notices to them demanding remittance of the amount. It is stated that civil suits have been filed and the suits have already been decreed. The bank also filed complaints against the petitioners before the Judicial Magistrate of the First Class, Changanacherry alleging offences under Ss.406 and 420 IPC. Those complaints were forwarded to the Changanacherry Police for investigation. Crime No. 667 and 668 of 1994 of Changanacherry Police Station were registered on the basis of the complaints. After investigation, the police filed refer reports in both cases stating that the liability was only of a civil nature and no criminal offence is involved. Thereafter, the bank, through its Senior Manager, Changanacherry Branch has instituted the complaints. They have been taken on file as C.C. Nos. 827 and 828 of 1994 on the file of the Judicial Magistrate of the First Class, Changanacherry. The prayer in these petitions is for quashing the complaints. 2. I have heard learned counsel for the petitioners and learned counsel appearing for the bank. 3. It is contended for the petitioners that no criminal offence is involved and there is no justification for the complaints. 4. C.C. No. 827/94 is the case instituted against the petitioner in Cr1.M.C. No. 6525/98. As per the averments in the complaint, she was issued a Cancard with a floor limit of Rs. 5,000/- on her application on 13.12.1988. She has drawn Rs. 5,000/- on 19.5.1992 for purchase of jewellery and also drawn Rs. 1030/-each on two occasions from the Kottayam Branch of the Bank. After adjusting the amount in the Savings Bank Account and adding service charges like annual fee, legal notice etc., the bank has calculated the amount due on 27.3.1993 as Rs. 7223.13. The amount due as on 31.8.1994 is shown as Rs. 11,329/-. The complaint itself shows that the accused/ petitioner admitted the liability and requested permission to pay the amount in instalments, but did not comply with the offer to pay in instalments either. 5. 7223.13. The amount due as on 31.8.1994 is shown as Rs. 11,329/-. The complaint itself shows that the accused/ petitioner admitted the liability and requested permission to pay the amount in instalments, but did not comply with the offer to pay in instalments either. 5. In para 12 of the complaint petition, it is stated that the accused (petitioner) is bound to maintain sufficient amount in the S.B.A/ C as per the agreement entered into under which Cancard was issued. She was fully aware that there were no sufficient funds when she withdrew the amounts availing the facility and the use of the Cancard is dishonest and amounts to criminal breach of trust. 6. In C.C. No.828/94 instituted against the petitioner in Crl. M.C. No. 1125/99 also, there are similar allegations that Cancard was issued on 13.12.1988 with a floor limit of Rs. 5,000/-. The accused/ petitioner in that case has drawn a total amount of Rs. 7,733/- availing the facility. The amount due as on 31.8.1994 including interest is shown as Rs. 12.170/- in the complaint. In that complaint also, it is stated that the petitioner failed to comply with the offer to pay the amount in instalments. 7. The point for consideration is whether an offence under S.420 or S.406 IPC is made out. 8. As seen above, the Cancards were obtained in December, 1988. The over drawal was in 1992 or thereafter. It is submitted for the petitioners that the bank filed civil suits and obtained decrees and only thereafter, instead of filing execution petitions, has filed the criminal complaints to compel the petitioners to discharge the amounts. It is also submitted that after the delay, the petitioner in Crl.M.C.No.1125/99 has paid Rs. 3,500/-in 1996. The petitioner in Crl.M.C.No. 6525/98 has also paid Rs. 3,500/- in 1996 and another Rs. 7,829/- more recently in 1999. This is not seriously disputed by learned counsel for the respondent. In order to constitute an offence of cheating, the petitioners must have had a dishonest intention to cheat when the Cancards were obtained or at least when the amounts were drawn. Such a case is not made out. Even assuming that giving the card facility will amount to entrustment of property, mere non-payment of the amounts due cannot constitute an offence of criminal breach of trust under S.405 IPC. Such a case is not made out. Even assuming that giving the card facility will amount to entrustment of property, mere non-payment of the amounts due cannot constitute an offence of criminal breach of trust under S.405 IPC. The respondent-bank has relied on a "term" in the terms and conditions of issue of Cancard that the card holder shall maintain sufficient credit balance in the concerned account to enable the bank to recover the dues payable in respect of the card. But failure to maintain sufficient credit balance by itself cannot be understood to constitute an intention to cheat. The over drawal in these cases has been marginal. It is not possible to say that it has been done with a criminal intent. This is clear from the conduct of the bank itself in permitting the petitioners to pay the amount due in instalments. Moreover, the terms and conditions itself show that a case of overdrawal was also contemplated. There is a stipulation that in case of overdrawal, the card holder undertakes to clear the overdrawals and authorise the bank to charge interest on such overdraft. It is in these circumstances that the investigating officer filed a refer report stating that it was only a civil liability. The payment of part of the amount, though after the institution of the complaint, shows that it was only a case of inability to pay the amounts. The petitioners' case that no criminal offence is involved must be accepted. In the circumstances, the criminal prosecution will amount to an abuse of the process of Court. Hence these petitions are allowed and the proceedings in C.C. Nos. 827 and 828/94 on the file of the Judicial Magistrate of the First Class, Changanacherry are hereby quashed.