Judgment : 1. The petitioner is an accused in a private complaint in C.C.No.10965 of 2005, on the file of the III Metropolitan Magistrate Court, filed by the respondent herein under Section 200 Cr. P.C. for offence under Sections 420 and 406 I.P.C. The petitioner is seeking to quash the proceedings pending against him, on the ground that there is no criminal liability against him and it is a case of civil nature. 2. The Complainant is ICICI Bank Limited, represented by its Officer. The Complainant against the accused/Petitioner is that as he had approached the complainant Bank for a personal loan, a loan amount of Rs.80,000/- was sanctioned after entering into an agreement through which the accused agreed to repay the loan in 48 equal monthly instalments of Rs.2609/-. The accused delivered to the complainant filled cheques assuring that the aforesaid filled cheques shall be honoured by the bankers. The complainant also disbursed the personal loan to the accused on 21.3.2003. It is alleged in the complaint that the cheque was issued for the repayment, but that has been dishonoured and a principal amount of Rs.49,171/-, excluding the bounce charges and interest agreed by the accused is pending. It is further alleged in the complaint that the accused had become a chronic defaulter in payment and also violated the agreement made. It is further stated in the complaint that the accused is not a trustworthy person and cheated the complainant to the tune of Rs.49,171/-. 3. The learned Counsel appearing for the petitioner submitted that the accused had repaid the major part of the loan amount and number of cheques have been honoured. It was also contended by the learned counsel for the petitioner that the amount said to be due towards principal was highly inflated. The dispute is entirely of civil in nature relating to the instalments payable on the loan taken from the bank and there was no element of criminal intention on the part of the accused/petitioner. The filing of the criminal case against the petitioner is only with an intention of giving pressure on the accused and to harass him. It was also submitted by the learned counsel for the petitioner that the learned Magistrate ought not to have taken the complaint on file, since such complaint was abuse of process of Court. 4. The filing of the criminal case against the petitioner is only with an intention of giving pressure on the accused and to harass him. It was also submitted by the learned counsel for the petitioner that the learned Magistrate ought not to have taken the complaint on file, since such complaint was abuse of process of Court. 4. The learned counsel appearing for the petitioner relied on the decisions reported in. i) Alpic Finance Ltd. v. P. Sadasivam and another (2001) 1 Crimes 293 (SC): (2001) 2 L.W. (Crl.) 676 and; ii) Anil Mahajan v. Bhor Industries Ltd., and Another (2005) 10 SCC 288 5. The learned counsel appearing for the respondent was heard with regard to the contentions raised by the other side. The learned counsel appearing for the respondent submitted that it is made clear in the complaint, that the accused had become a chronic defaulter in payment, after agreeing to repay the personal loan and also after giving assurance that the cheques given by him shall be honoured by the bankers, the cheques have been dishonoured. Having promised, he has not fulfilled the promise. The learned counsel appearing for the respondent also drew the attention of this Court to the illustration (f) given under Section 415 of I.P.C., which reads as follows: “Section 415 Cheating:- Whoever, by deceiving any person, fraudulently or dishonestly the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or hard to that person in body, mind, reputation or property, is said to “cheat”. Illustration (f) ‘A‘, intentionally deceives ‘Z‘ into a belief that ‘A‘ means to repay any money that ‘Z‘ may lend to him and thereby dishonesty induces ‘Z‘ to lend him money, ‘A‘, is not intending to repay, ‘A‘ Cheats.” 6. Relying on the above said illustration, the learned counsel appearing for the respondent submitted that whether the accused intended to deceive at the inception is a matter of the offences need not be stated in the complaint. Relying on the above said illustration, the learned counsel appearing for the respondent submitted that whether the accused intended to deceive at the inception is a matter of the offences need not be stated in the complaint. Merely because the civil remedy is available, it cannot be said that the decisions reported in Rajesh Bajaj v. State NCT of Delhi and Others JT (1999) 2 SC 112: (1999) 2 L.W. (Crl.) 649 and in M. Krishnan v. Vijay Singh and Another AIR 2001 SC 3014 : (2001) 8 SCC 645 . 7. To consider the rival submissions made by both parties, it becomes first necessary to see what is stated in the complaint, to attract the ingredients of the offence under Section 406 and 420 I.P.C.; and to see whether a prima facie case is made out against the accused. It is also necessary to decide whether it is a case of only a civil nature or prima facie any criminal liability is established. 8. In the complaint, it is stated that loan was sanctioned after the accused agreed to repay the amount in 48 equal monthly instalments and towards that payment he has given filled cheques with an assurance that the cheques will be honoured by the bank. An attempt is made in the complaint to say that the accused has cheated the complainant and misappropriated the money belonging to the complainant, from the fact that the cheque has been dishonoured and the accused had become chronic defaulter and the principal amount of Rs.49,171/- is due for the total loan of Rs.80,000/- 9. In order to attract the Illustration (f) of Section 415 I.P.C., that the accused intentionally deceived the complainant or the accused dishonestly induced him to lend the money and the accused not intended to repay, no averment is made to that effect or no material is brought out whether in the complaint or in the sworn statement. 10. In Rajaji Bajaj v. State NCT of Delhi and Others JT (1999) 2 SCC 112: (1999) 2 L.W. (Crl.) 649, in paragraph-9, it is stated by the Honourable Supreme Court that “it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. 10. In Rajaji Bajaj v. State NCT of Delhi and Others JT (1999) 2 SCC 112: (1999) 2 L.W. (Crl.) 649, in paragraph-9, it is stated by the Honourable Supreme Court that “it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent.” There is no doubt about the principle laid down in the above said decision. But the averment should be made in the complaint with materials which would prima facie make out a case against the accused. 11. The learned counsel appearing for the respondent has also relied on the decision in M. Krishnan v. Vijay Singh and Another AIR 2001 SC 3014 : (2002) MLJ (Crl.) 134, wherein it is held thus : “ 5. Accepting such a general proposition would be against the provisions of law inas much as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal Court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to disgrace or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yard sticks. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yard sticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of.” Further in the above said decision, the Honourable Supreme Court was dealing with the averments made in a First Information Report and while so it was felt by the Honourable Supreme Court that it was too premature stage for the High Court to step in and stall the investigation by declaring that it was a commercial transaction simplicator wherein no criminal offence is involved. The case in hand is on complaint filed under Section 200 Cr.P.C. and in the list of witnesses, only the complainant is shown as a witness and as such, the complainant is to speak to the facts stated in the complaint and in the sworn statement. 12. In the decision reported in R. P. Kapur v. State of Punjab AIR 1960 SC 866 : (1961) MLJ (Crl) 21, it is observed in Paragraph -6 as follows :- “It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case whether to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not constitute the offence alleged, in such cases no question of appreciating evidence arise; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with the class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the acquisition made and cases where there is legal evidence which on its appreciation may or may not support the accusation inquisition. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as of whether the evidence in question is reliable or not. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as of whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable apprehension of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings.” 13. On the above said principle of the Hon‘ble Supreme Court the case in hand is to be analysed. (i) Even according to the complaint, a part payment has been made by the accused. (ii) It is not stated in the complaint that how many cheques were honoured and how many cheques were dishonoured. (iii) The total period of loan repayment is four years which is understood from the fact mentioned in the complaint that 48 equal Monthly instalments, but this complaint is filed even prior to the expiry of the total period of four years. 14. In Anil Mahajan v. Bihor Industries Ltd., and Another (2005) 10 SCC 228 the Honourable Supreme Court has observed as follows : “ 6. The order of the Magistrate was challenged before the Court of session. The Learned Additional Sessions Judge, Pune, by order dated 19.10.2001 has set aside the order of the Magistrate issuing process. It has been stated by the Learned Additional Sessions Judge in the order that: “In this case there is not allegation that the accused made unlawful representation. Even, according to the complaint, they entered into Memorandum of Understanding. Grievance seems to be that the accused failed to discharge obligations under the MOU. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the applicant and thereby the opponent parted with the property”……… 8. The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the applicant and thereby the opponent parted with the property”……… 8. The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. Except mention of the words “deceive” and “cheat” in the complaint filed before the Magistrate and “cheating” in the complaint filed before police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complaint, a sum of Rs.3,05,39,086 out of the total amount of Rs. 3,38,62,860 was paids leaving balance of Rs. 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainants own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above noticed. The additional reason for not going into these aspects is that a civil suit is pending interese the parties for the amounts in question. 9. In Alpic Finance Ltd. v. P. Sadasivam (2001) 3 SCC 513 , this Court was considering a case where the complainant had alleged that the accused was not regular in making payment and committed default in payment of instalments and the bank had dishonoured certain cheques issued by him. Further allegations of the complaint was that on physical verification certain chairs were found missing from the premises of the accused and thus it was alleged that the accused committed cheating and caused misappropriation of the property belonging to the complainant. Noticing the decision in the case of Nagawwa v. Veeranna Shivalingappa Konjalgl (1976) 3 SCC 736 wherein it was held that the Magistrate while issuing process should satisfy himself as to whether the allegations in the complaint, if proved, would ultimately end in the conviction of the accused, and the circumstances under which the process issued by the Magistrate could be quashed, the contours of the powers of the High Court under Section 482 Cr. P.C. wee laid down and it was held (SCC p. 520, paras 10-11) “ 10. The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time law permits the victim to proceed against the wrong doer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence under Section 420 I.P.C. and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any wilful misrepresentation. Even according to the appellant, the parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegations that there was fraud or dishonest inducement on the part of the respondent and thereby the respondents parted with the property. It is trite law and common sense that an honest than entering into a contract is deemed to represent that he has the present intention of carrying it out but it, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception. 11. Moreover the appellant has no case that the respondents obtained the article by any fraudulent inducement or by wilful misrepresentation. We are told that the respondents, though committed default in paying some instalments, have paid substantial amount towards the consideration.” 10. 11. Moreover the appellant has no case that the respondents obtained the article by any fraudulent inducement or by wilful misrepresentation. We are told that the respondents, though committed default in paying some instalments, have paid substantial amount towards the consideration.” 10. We have examined the complaint and it is clear form its substance that present is a simple case of civil disputes between the parties. Requisite averments so as to make out a case of cheating are absolutely absent. The principles laid down in Alpic Finance Ltd., case were rightly applied by Learned Additional Sessions Judge and it cannot be said that the ratio of the Additional sessions Judge had rightly set aside the order of the Magistrate issuing process to the appellant”. 15. In view of the principles laid down in (supra) followed in the above said decision, it is to be held that the requisite averments so as to make out a case of cheating or misappropriation are absolutely absent in the complaint filed by the respondent herein. 16. If a complaint with such bald allegations are allowed to be proceeded then no distinction can be made among the genuine borrower and the fraudulent borrowers. Unless the complaint come forward with a specific allegation and averments to show that the borrower is not a genuine, but fraudulent one, no criminal action can proceed against the borrower simply for the reason that he had committed default in repayment or he is a chronic defaulter. 17. In fact, on a perusal of records called from the trial Court, it is seen that a copy of the statement of accounts is filed along with the complaint. In that statement, the instalment period is shown as 7.7.2005 to 7.3.2007 and the date of disbursal of loan amount is 21.3.2003. The statement of accounts runs from 21.3.2003 in which, the last payment by way of cheque bearing No.9942906 for amount of Rs.2,209 and also for Rs. 400/- is shown as received on 8.8.2005. It is also understood from the accounts that number of cheques being honoured, the amount has been brought into account. 18. The statement of accounts runs from 21.3.2003 in which, the last payment by way of cheque bearing No.9942906 for amount of Rs.2,209 and also for Rs. 400/- is shown as received on 8.8.2005. It is also understood from the accounts that number of cheques being honoured, the amount has been brought into account. 18. On perusal of the statement of accounts, the deliberate omission in the complaint to mention with regard to the fact that out of 48 instalments and out of 48 cheques how many cheques were honoured and how many were dishonoured leads to show that the complainant is abusing the process of Court by filing a private complaint without details against the petitioner. 19. It can be also seen from the statement of accounts that the bank had a Branch in Nagerocil which is the residential place of the accused, but it had chosen to file this complaint in Chennai which is at 600 miles distance from the place of accused. Though this Court is not invalidating, it is one another factor to show that the intention of the bank is to harass the accused by pulling him from Nagercoil to Chennai. 20. In the decision of the Honourable Supreme Court in the Manager, ICICI bank Limited v. PrakashKaur and Others (2007) 1 LW (Crl) 223): (2007) 1 MLJ (Crl) 1031, it is observed as follows at p. 1040 of MLJ: “ 16. Before we part with this matter, we wish to make it clear that we do not appreciate the procedure adopted by the Bank in removing the vehicle from the possession of the writ petitioner. The practice of hiring recovery agents, who are musclemen, is deprecated and needs to be discouraged. The bank should resort to procedure recognized by law to take possession of vehicles in cases where the borrower may have committed default in payment of the instalments instead of taking resort to strong arm tactics.” 21. In this case also, this Court feels that the Bank instead of resorting to procedures recognized by law, had taken resort to file criminal complaint against the accused. 22. In this case also, this Court feels that the Bank instead of resorting to procedures recognized by law, had taken resort to file criminal complaint against the accused. 22. In State of Karnataka v. L. Muniswamy (1977) SCC (Crl) 404: (1997) 2 L.W. (Crl) 39 S.N.: (1997) MLJ (Crl) 428, the Honourable Supreme Court held that in the exercise of wholesome power under Section 482 of the Code, the High Court is entitled to quash to proceeding if it comes to the conclusion that allowing the proceeding would be an abuse of process of Court or that ends of justice require that the proceedings are to be quashed. 23. In Pepsi Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 : (1998) 1 L.W. (Crl) 72, it has been specifically held by the Honourable Supreme Court that: “Though the Magistrate taking a case has jurisdiction to discharge the accused at any stage of the trial considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial”. 24. With the above said observation, the proceedings against the petitioner in C.C.NO. 10965 of 2005, on the file of the III Metropolitan Magistrate Court, George Town, Chennai, is quashed. 25. With the above observation, the criminal original petition is allowed.