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2018 DIGILAW 241 (CAL)

ICICI Bank Ltd. v. State of West Bengal

2018-02-09

MD.MUMTAZ KHAN

body2018
JUDGMENT : MD. MUMTAZ KHAN, J. This is an application under Section 482 of the Code of Criminal Procedure filed by the petitioners praying for quashing of the proceeding of Complaint Case No. 165 of 2007 under Sections 420/406/409/506/120B of the Indian Penal Code pending before the Court of learned Judicial Magistrate, 4th Court, Barrackpore, North 24-Parganas. 2. The complainant, opposite party no. 2 herein, availed a car finance from one Magma Leasing Limited for an amount of Rs. 1,87,000/- and pursuant to the car loan agreement March 11, 2002 complainant issued some post dated cheques in favour of Magma Leasing Limited towards the payment of successive EMI against the borrowed amount of the said car finance. In the month of August, 2004, the complainant was persuaded to enter into a “Car Overdraft Finance Scheme” with the petitioner Bank through the petitioner nos. 2 and 3 with the promise that the petitioner Bank would repay the outstanding car loan amount of Rs. 1,02,270/- for and on behalf of the complainant to the said Magma Leasing Limited. Thereafter, the petitioner bank by a letter dated August 5, 2004 informed the complainant that payment of Rs. 1,02,207/- was made to Magma Leasing Limited by a Demand Draft dated August 10, 2004 and therefore, the car overdraft account being no. 627705043918 of the complainant was debited by the petitioner bank and that a balance overdraft limit of Rs. 32,130/- would be available to the complainant. Subsequently, while the complainant was making payment by cheque, it was discovered in the month of August, 2005 that the said Magma Leasing Limited went on encashing the earlier deposited post dated cheques of the complainant for the period for September, 2004 to August, 2005. After discovering the said fact, the complainant issued legal notice to the petitioners asking them to furnish the document to establish that the petitioner Bank had really made payment of Rs. 1,02,270/- to the Magma Leasing Limited but to no effect. The complainant then filed a case being no. C-758/05 against the petitioners including the said Magma Leasing Limited. After discovering the said fact, the complainant issued legal notice to the petitioners asking them to furnish the document to establish that the petitioner Bank had really made payment of Rs. 1,02,270/- to the Magma Leasing Limited but to no effect. The complainant then filed a case being no. C-758/05 against the petitioners including the said Magma Leasing Limited. Thereafter, Magma Leasing Limited referred the entire dispute as to the question of their claim of non-recovered outstanding car loan in the name of the complainant to the arbitration proceeding and during that arbitration proceeding complainant's vehicle was seized away from her custody by the Receiver appointed by the 8th Bench of City Civil Court in connection with Misc. Case No. 1787/06 instituted by the Magma Leasing Limited. Subsequently, the aforesaid dispute between the complainant and Magma Leasing Limited was ended in compromise and the complainant had to pay of all the dues outstanding which wrongfully, maliciously and fraudulently claimed to have been paid by the petitioners. The petitioners willfully with an intent to cheat the complainant told her that the amount had been paid by the petitioner Bank and during the period from September 25, 2004 to July 19, 2005 petitioner no. 1 bank had wrongfully and fraudulently collected an amount of Rs. 81,140/- from the complainant. The petitioners by misrepresenting the fact and by inducing the complaint had obtained the original vehicle registration certificate of the complaint with intent to extort money from the complainant. On account of fraud committed by the petitioners, the complaint had to incur a major loss in terms of money and in terms of her social esteem and dignity. The complainant was induced by the petitioners to entrust her valuable documents and immovable property upon the petitioner no. 1 and the petitioners induced the complainant and cheated her. 3. On receipt of above the complaint learned Additional Chief Judicial Magistrate took cognizance and transferred the case to the court of learned Judicial Magistrate, 4th Court, Barrackpore for disposal who then after examining the complainant and others directed the I.C Ghola P.S for enquiry under Section 202 of IPC and thereafter, on receipt of the report found prima facie material against the petitioners for the offence under Sections 420/409/406/506/120B of the IPC and accordingly issued summon against them. 4. 4. It was submitted by the learned advocate for the petitioners that there is nothing in the complaint to show that there was inducement by the petitioner Bank nor there was any such ingredients of offence of cheating or criminal breach of trust. According to him it was the property of the Bank as the Bank had taken over the loan that the allegations made in the petition of complaint do not prima facie construe any criminal offence and that no case has been made out against the petitioners. He also submitted that the grievance of the respondent no. 2 is civil in nature and so the other for a can be availed of for settlement of account and the criminal case will not lie. According to him criminal action is in person and not in rem but in the instant case basic concept has not been followed and the petitioner herein are not at all liable for any such wrong as being not party to the transaction. 5. Learned advocate appearing for the respondent no. 2 submitted that complainant was persuaded to enter into a Car Overdraft Finance Scheme with the petitioner Bank through the Manager (Power Overdraft) and Collection Manager of the petitioner Bank and being persuaded and inducement complainant agreed to enter into car overdraft financing scheme offered and proposed by the accused/petitioners. He further submitted that complainant on good faith relied upon the accused persons that she was not required to pay any further payment to the Magma Leasing Limited and only have to pay to the petitioner Bank and while making payment to the petitioner bank it was detected that in spite of assurance given by the petitioner/Bank no payment was made by the Bank to the Magma Leasing Limited and as such Magma Leasing Limited went on encashing the cheques issued by the complainant. He also submitted that the petitioners/accused persons by misrepresenting the fact and by inducing the complainant obtained original vehicle registration certificate with an intent to extort money from the complainant. He further submitted that on account of such fraud practicing scheme adopted by the petitioners/accused persons complainant have to incur major loss in terms of money and in terms of her social esteem and dignity. 6. I have considered the submissions of the learned advocates appearing for the respective parties and gone through the documents on record. 7. He further submitted that on account of such fraud practicing scheme adopted by the petitioners/accused persons complainant have to incur major loss in terms of money and in terms of her social esteem and dignity. 6. I have considered the submissions of the learned advocates appearing for the respective parties and gone through the documents on record. 7. It is not in dispute that complainant/opposite party no. 2 availed a car loan from Magma Leasing Ltd. which was subsequently taken over by the petitioner Bank with the promise to repay the outstanding car loan amount on behalf of the complainant/opposite party no. 2. Accordingly, opposite party no. 2 instead of making any payment to the said Magma Leasing Ltd. went on paying to the petitioner Bank. Allegedly, petitioner Bank on one hand did not make any payment to Magma Leasing Ltd., as claimed, but went on collecting cheques regularly from the opposite party no. 2 as a result Magma Leasing Ltd. started encashing the post dated cheques of the opposite party no. 2 which were lying with them. 8. Learned Magistrate taking into account the entire circumstances including the report of investigation under section 202 of the Criminal Procedure issued process against the petitioner Bank and it's Manager (Power Overdraft) and Collection Manager for the offence under Sections 420/409/406/506/120B of the Indian Penal Code. I do not agree with the submission of the learned Advocate for the petitioners that the petition of complaint does not disclose any such ingredients of offence of cheating or criminal breach of trust. 9. Section 11 of the Indian Penal Code defines “Person” which includes any Company or Association, or body of persons, whether incorporated or not. In the case in hand Manager (Power Overdraft) and Collection Manager of the Petitioner Bank have been arraigned as accused as being the authorised representatives of petitioner no. 1 Bank on whose reported persuasion and inducement complainant agreed to enter into car overdraft financing scheme with the petitioner Bank. As such the person who were holding the posts at the relevant point of time and allegedly committed the offence in question should have been arraigned as accused by their personal name along with their respective designations. 1 Bank on whose reported persuasion and inducement complainant agreed to enter into car overdraft financing scheme with the petitioner Bank. As such the person who were holding the posts at the relevant point of time and allegedly committed the offence in question should have been arraigned as accused by their personal name along with their respective designations. One who was not in charge of the affairs of the Bank at the relevant point of time nor connected with the alleged transaction must not suffer only because of his holding that post at subsequent stage. It is not unlikely that a private person may not be aware of the personal name of an official and the authority concerned is the best person to say so from the office record. Petitioner nos. 2 and 3 have claimed that they were not the persons in charge of the affairs of the Bank at the relevant point of time nor party to the transaction that took place in the year 2006 but this a question of fact that can be decided only on evidence. 10. After considering the entire facts and circumstances of the case and submissions of the parties and on going through the record it appears that the issues involved herein are based on the question of disputed facts which can not be decided at this stage in the instant revision in the absence of any evidence on record. It has been made to understand to this court that the case is at the stage of recording evidence before charge. All the points are, therefore, kept open for decision and the petitioners can agitate those points before the trial court at the time of hearing over framing of charge. 11. The instant revisional application is, thus, disposed of granting liberty to the petitioners to agitate all those points before the trial court at the time of hearing over framing of charge. The interim order of stay, if any, stands vacated. 12. There shall be no order as to the costs. 13. Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.