DR. A. AMEER JAHAN AND ANOTHER Vs. STATE

JUDGEMENT

(1.) The first petitioner claims that he is a Medical Practioner doing research work on the topic "Infertility and Sexology" at Madurai for the past 10 years. The second petitioner is his wife. They applied for a term loan to the Canara Bank, North Veil Street Branch, Madurai for purchasing drugs and special medical instruments to the tune of Rs. 2,74,000.00 for the purpose of their Research work. The loan amount is repayable with interest at Reserve Bank of India rate in 55 monthly instalments, the repayment commencing after an initial leave period of two years. Towards security of the said loan they had mortgaged their title deeds of some immovable properties and Insurance Policy. A Deed of Hypothecation was also executed on 4-7-1984 in favour of the Canara Bank Branch. It appears that they have repaid a sum of Rs. 60,000.00. There were exchanges of notices between the parties regarding the balance amount payable in May 1985. Thereafter the Bank filed O. S. No. 696 of 1988 in the Court of Subordinate Judge, Madurai for the recovery of the money. The petitioners have also-filed their written statement. In the meanwhile, on 13-2-1989 the Bank preferred a complaint before the respondent-Superintendent of Police (Urban), Madurai against the first Petitioner and one Samsudeen, Proprietor of Sajitha Scientific Company in Crime No. 8/89 under Sec. 420, I.P.C. The petitioner seeks to quash the said complaint by invoking the inherent Jurisdiction of this Court under Sec. 482, Cr. P. C., for the reason that there is suppression in the complaint of facts relating to civil proceedings. Failure to return the money and not abiding by the contract, by itself, will not amount to an offence unless there is allegation to the effect that the accused had induced the complainant to pay the amount. The initiation of criminal proceedings suppressing the pendency of civil suit is an abuse of process of Court.

(2.) There is no dispute that Canara Bank has proceeded against the petitioners herein in O. S. No. 696 of 1988 in the Court of Subordinate Judge of Madurai for the recovery of Rs. 2,74,000.00 advanced by the Bank on 27-6-1984 with interest as per the contract which comes to a total sum of Rs. 4,55,290.70. The property mortgaged under the Hypothecation Deed dated 4-7-1984 is sought to be made liable for recovery of the money. The allegations in the plaint are to the effect that the loan was granted for the purpose of machinery described in the plaint B Schedule on conditions of execution of necessary instruments and the security of immovable property and accordingly the Articles of Agreement was executed by the defendants on 27-6-1984. The second defendant has also made a deposit of title deeds of her property to secure the loan. The complaint lodged under Sec. 420, I.P.C., in Crime No. 8/89 is to the effect that the accused therein joined together with the common intention to cheat the Bank in a sum of Rs. 2,74,000.00 and represented that the first petitioner intended to purchase one set of Liquid Nitrogen Apparatus to study the semen (Sic) analysis which will help him in his research work and clinical practice. The second accused had written a letter to the complainant-Bank stating that he had received a sum of Rs. 1,00,000.00from the first accused on 5-3-1984 for selling the apparatus to the first accused. Believing the representations made by the accused therein the Bank sanctioned the loan. But for the representations made by the accused that the amount was intended for the purpose of the apparatus, the Bank would not have sanctioned the loan. When the Bank called on the first accused at his clinic to inspect the apparatus, the latter refused permission. So the Bank doubts whether the' accused had purchased and received the apparatus at all. The intention of the accused was to cheat the complainant and get the amount by false representation that they wanted to purchase the Liquid Nitrogen Apparatus. And this complaint makes no mention of D.S. No. 696 of 1986 pending between the parties for the recovery of the amount involved.

(3.) Learned Counsel for the quash petitioners submits that the suppression of civil proceedings in the criminal complaint is sufficient to quash the same. In support of his contention he has placed reliance on the judgment of Arunachal J. in Jayaraman. State by Kallur Police, 1989 Mad LW (Crl) 233. There the first informant tiled a suit in the Munsif's Court against one Lakshmi Trade Credits Limited, Madras for a declaration and permanent injunction restraining the respondent from in any way alienating or encumbering the lorry which belonged to him. During the pendency of the suit the injunction petition was heard. The district Munsif has found that on the basis of a hire purchase agreement between the first informant and Lakshmi Trade Credits Limited, the latter continued to be the owner of the vehicle till the instalments were fully paid and was also entitled to responses the vehicle in case of default as provided in the agreement. Aggrieved by the order of the District Munsif, the first informant preferred a civil miscellaneous appeal on the file of the Principal Subordinate Judge, Salem which was also dismissed. The first informant did not take further steps to challenge the order of the Sub Court, Salem. After the termination of the civil proceedings the complaint was lodged culminating in the charge-sheet. In the said complaint the first informant had not stated anything about the prior civil litigation between the parties and the verdict of the civil Courts. This again, without.proper investigation, has resulted in the impugned prosecution. The complaint was to the effect that 50 persons belonging to Lakshmi Trade, Credits Limited took away the lorry of the first informant in the process of which they tried to attack him as well. The first information report was registered under Sec. 379, I.P.C., and after investigation a charge-sheet was filed. In a petition to quash the proceedings in the Calendar case, learned Judge has held that if the complainant is aggrieved, it is for him to agitate the matter in the civil Court to enforce his rights. The dispute raised by the first respondent was purely of a civil nature, in spite of his suppression of civil proceedings. Obviously a bonafide claim of right led to the seizue of the lorry and this has been affirmed by the civil Court. There was no material to prosecute the petitioners for theft of the vehicle.