JUDGMENT : 1. This petition has been filed for quashing the order dated 06.04.2018 passed in connection with C/1 Case No.323 of 2015 passed by learned Judicial Magistrate, at Jamshedpur whereby cognizance under sections 409, 418, 420, 199, 477-A of the I.P.C has been taken and the case is pending in the court of learned Judicial Magistrate, Jamshedpur. 2. The O.P.No.2 has filed the complaint case alleging therein which, in brief, is: 3. That the O.P no.2 has filed C/1 Case no.7 of 2014 in the court of learned Chief Judicial Magistrate at Jamshedpur on 02.01.2014 by alleging therein that the complainant and the ICICI Bank authority jointly signed facility agreement on 28.01.2008 wherein ICICI Bank sanctioned a sum of Rs.14,70,000/- only vide file no.7777447273 and terms of repayment of loan was for 240 months (i.e. 20 years) and the ICICI Bank has deducted EMI of Rs.15,174/- per month from the salary account 0089010227071 from the complainant with effect from 10.03.2008. A further allegation has been made that ICICI Bank charged floating rate of interest at the rate of 12.75 % per annum as on the date of facility agreement and also charged interest at the rate of 11% per annum plus applicable interest tax or other statutory levies. He has received offer letter for home loan facility on 27.09.2008 having loan Account No.LBJMR0000169015 from ICICI Bank, Bistupur, Jamshedpur and the terms of repayment of loan amount was for 240 months (i.e. 20 years) and the ICICI Bank has deducted EMI of Rs.15,174/- per month from the salary account no.008901027071 with effect from 10.03.2008 on the facility loan amount sanctioned amounting to Rs.14,70,000/- only and floating rate of interest (FRR) at the rate of 14.25% per annum as on date adjustable interest rate at the rate of 12.5% (i.e. FRR plus/margin of -1.75%) amount of each EMI Rs.15,174/- for 8 months and Rs.16,586 for 232 months. A further allegation has been made that ICICI Bank has disbursed home loan for a sum of Rs.12,70,000/- only as per sanction letter and cumulative amount for a sum of Rs.12,68,348/- only and the ICICI Bank has disbursed a cheque no.200908 dated 31.01.2008 in favour of the M/s Kumar Construction and after receipt of the aid amount from ICICI Bank M/s Kumar Construction has granted money receipt in favour of the applicant vide money receipt no.786 dated 05.02.2008 and the said money receipt was collected by the ICICI Bank and sent Xerox copy of the receipt to the complainant. It has been further stated that ICICI bank has also disbursed a sum of Rs.70,000/- only for Home Assurance Policy, Rs.59,969/- excluding service tax and education cess Rs.7,412/- total Home loan assurance policy Rs.67,381/- and health assurance premium of Rs.2,619/- vide cheque no.2000909 dated 31.01.2008 in favour of ICICI Bank Prudential Life Insurance Policy, Bistupur, Jamshedpur and ICICI Prudential Life Insurance company has granted vide Master Policy no.M02 Life Cover Commencement dated 06.02.2008, Life Coverage Term 240 months (20 years), Home loan interest rate at the rate of 11% per annum (i.e. FRR plus/ margin of -1.75%) plus applicable interest tax or other statutory levies as on the date of Home Assured/Health Assured proposal form in favour of the applicant. It has been further submitted that total loan amount sanctioned by the ICICI Bank is Rs.12,70,000/- on 31.01.2008 after TDS deduction amount of Rs.1,652/- and total cumulative disbursement amount sanctioned by ICICI Bank is Rs.12,68,348/- only. It has been further submitted that total loan amount sanctioned by the ICICI Bank is Rs.12,70,000/- on 31.01.2008 after TDS deduction amount of Rs.1,652/- and total cumulative disbursement amount sanctioned by ICICI Bank is Rs.12,68,348/- only. It has been further alleged that ICICI bank deposited a sum of Rs.1 lakh only decreased and increased as per account statement in the loan account on 26.06.2008 vide cheque no.201185 whereas the photocopy of cheque no.201185 shows that the cheque was issued by the ICICI Bank on 30.06.2008 in favour of M/s Kumar Construction against disbursal request but, no money receipt has been forwarded by the ICICI bank or by M/s Kumar Construction and Xerox copy of the cheque which was produced by the ICICI Bank to the applicant, but no money receipt or disbursement letter of M/s Kumar Construction has been forwarded by ICICI bank after several request; The complainant further alleged that by the ICICI Bank or by M/s Kumar Construction and the Xerox copy of the cheque which was produced by the ICICI Bank to the applicant but no money receipt by disbursement letter of M/s Kumar Construction has been forwarded by ICICI Bank after several request. The complainant has further alleged that ICICI Bank has failed to show money receipt or disbursement letter for a sum of Rs.1 lakh and the bank has charged interest on the said amount. It has been further alleged that the total disbursement amount is Rs.12,70,000/- only and the floating rate of interest at the rate of 11% per annum and total EMI term is 160 months. It has been further alleged that ICICI bank has fixed the tenure of loan of 413 months and prime lending rate/floating rate of interest without any knowledge and consent whereas the ICICI Bank has earlier fixed 240 months as per the facility agreement and also floating rate of interest at the rate of 11% to 15% per annum deducting on Rs.13,70,000/- whereas ICICI bank has disbursed a sum of Rs.12,70,000/- only. It has been further alleged that the prime lending rate of interest is higher than other nationalized bank and in this regard the applicant has not received any email from the ICICI bank. It has been further alleged that the prime lending rate of interest is higher than other nationalized bank and in this regard the applicant has not received any email from the ICICI bank. He has paid EMI up to date and has deposited a sum of Rs.10,00,675/- as per the home loan repayment statement and the bank has shown the installment paid to the tune of Rs.9,88,266/- only whereas the applicant sanctioned a sum of Rs.12,70,000/- only. It has been alleged that the ICICI bank has shown a sum of Rs.9,17,730/- only as interest and principal paid is shown to be Rs.70,536/- only although the complainant has paid total installment of Rs.9,88,266/- only and OD charge and cheque bouncing charges has already been paid by the applicant till October, 2013. That the ICICI bank has charged higher rate of interest whereas the other nationalized bank like State Bank of India and LIC housing Finance it means that ICICI bank has violated the guidelines of Reserve Bank of India. The Hon’ble Court calculated the interest amount including principal and interest from 2008 and 2013 floating rate of interest as per RBI/national housing board/ housing development finance corporation and in the meantime also direct the ICICI bank not to take any coercive action against the applicant or the residential flat for which the ICICI Bank has given home loan for purchase of the same till the disposal of the case. 4. The learned counsel for the petitioner submits that the petitioner is the officer of Bank and pursuant to an agreement a loan amount was disbursed in favour of the O.P.No.2. He further submits that the loan amount has not been fully paid to the Bank by the O.P.no.2 and for that, the Bank moved before the Debts Recovery Tribunal, Ranchi in O.A. No.113/2016. He further submits that the loan amount has not been fully paid to the Bank by the O.P.no.2 and for that, the Bank moved before the Debts Recovery Tribunal, Ranchi in O.A. No.113/2016. He submits that the said complaint was sent before the police under section 156(3) Cr.P.C which was registered and police investigated the matter and submitted final form whereby the petitioner has not been sent up for trial and on protest petition filed by the O.P.No.2 the learned court has taken cognizance which was challenged in the revision bearing Cr.Revision no.146 of 2016 before the learned Sessions Judge, East Singhbhum and the said revision petition was allowed and the matter was remitted back to the concerned court to pass a fresh order and thereafter this cognizance order has been passed by the learned court which is under challenge. He submits that when civil dispute is there, the parties are also moved before the Tribunal, this case was unwarranted and unnecessarily the petitioner has been implicated in a criminal case. 5. On the other hand, the learned counsel for the O.P.No.2 submits that without any authority a sum of Rs.One lakh has been transferred by the Bank in favour of the builder and that is the grievance of this O.P.No.2. He further submits that the notice of the Bank was challenged by the petitioner in S.A.No.107 of 2015 before the Debts Recovery Appellate Tribunal, at Allahabad under the SRFAESI, Act. On this ground, he submits that this petition be dismissed. 6. This Court has gone through the materials on record and also the submissions of the learned counsel appearing for the parties. The complaint was initially filed before the Court. It appears that the complaint was not on the affidavit which was referred under section 156(3) Cr.P.C. when any criminal action is being taken against the Bank and the officers of the Bank, it is mandatory that the complaint must be on affidavit which is lacking in the case in hand and in this regard a reference may be taken to the case of “Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 ”, however, the case was investigated by the police and the petitioner was not sent up for trial. On the protest petition the learned court has taken cognizance against the petitioner. On the protest petition the learned court has taken cognizance against the petitioner. By order dated 13.05.2016 which was set aside by the revisional court and sent back to pass a fresh order and pursuant thereto the order has been passed whereby the cognizance has been taken. It is an admitted fact that pursuant to an agreement the amount was disbursed in favour of the O.P.No.2, for non-payment the Bank has invoked jurisdiction under section 5 of the Act and the petitioner has also invoked in that appeal numbered S.A.No.107 of 2015. The paragraph nos. 27, 30 and 32 in the case of ‘Priyanka Srivastava v. State of U.P.’, (2015) 6 SCC 287 are quoted hereinbelow: “27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) CrPC and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to. 30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. 32. The present lis can be perceived from another angle. We are slightly surprised that the financial institution has been compelled to settle the dispute and we are also disposed to think that it has so happened because the complaint cases were filed. Such a situation should not happen.” 7. Since both the parties have invoked the jurisdiction under the SARFAESI Act, there is no occasion to file criminal case for civil cause. The case is arising out of contractual agreement and if any wrong is there civil suit or other remedy under the statute are required to be followed and not the criminal case. A reference may be made to case of “Indian Oil Corpn. v. NEPC India Ltd.”, (2006) 6 SCC 736 . Paragraph no.12 of the said judgment is quoted hereinbelow: “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd, Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque. Sharaful Haque. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 8. The test is whether the allegations in the complaint disclose a criminal offence or not. 8. The scope under section 482 Cr.P.C is that the purpose and object is for advancement of justice as held by the Hon’ble Supreme Court in the case of Vinit Kumar v. State of Uttar Pradesh and Another, (2017) 13 SCC 369 . In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by Supreme Court in State of Haryana v. Bhajan Lal.” 9. Since both the parties have moved for their grievance under the SARFAESI Act the complaint is arising out of agreement for civil wrong and criminal colour has been put into by way of filing the complaint case. 10. In view of the above discussions and looking into the judgment of the Hon’ble Supreme Court, the reasons and the analysis, this Court comes to the conclusion that this is a case to exercise power under section 482 Cr.P.C. 11. Accordingly, the entire criminal proceeding and order dated 06.04.2018 passed in connection with C/1 Case No.323 of 2015 passed by learned Judicial Magistrate, at Jamshedpur whereby cognizance has been taken, pending in the court of learned Judicial Magistrate, Jamshedpur is quashed. 12. Cr.M.P.No.3422 of 2018 stands allowed and disposed of. 13. So far as the civil wrong is concerned, this Court has not given any finding on it which will be decided in accordance with law and this order will not come in the way in deciding the civil wrong.