KAILASH NATHAN WORKING FOR GAIN AT ING VISYA BANK LTD. AS ASSISTANT VICE-PRESIDENT Vs. THE STATE OF BIHAR & ANR.

JUDGEMENT

(1.) In this case, petitioner, who is the Assistant Vice-President of ING Visya Bank Ltd. is challenging the order of cognizance dated 2nd January, 2009 passed by the Judicial Magistrate, 1st Class, Vaishali at Hajipur in Complaint Case No. 3297 of 2008 for the offences under Sections 420, 427, 379, 120B of the Indian Penal Code. From the complaint petition it appears that the O.P. No. 2 filed a criminal case against the Bank and its Officials, including other individual persons where primarily allegation has been made that the Bank has wrongly recovered the truck from the possession of the complainant in the event of non-payment of instalment within the time which is an act of criminal offence and the Bank could not have acted in the manner, rather for recovery of the vehicle they ought to have gone to the civil court or any appropriate, forum instead of forceful recovery of the truck. One Babul Chandra Paul had purchased the truck bearing Regd. No. WB-23A/9777 from loan granted by the Bank with a stipulation for payment of loan amount on instalment. As Babul Chandra Paul did not pay the loan amount, it led to recovery of the said truck by the Bank concerned. The accused persons approached the petitioner for purchase of the said truck being satisfied with the paper, instantly asked to pay Rs. 1,80,000/- through Bank Draft. Accordingly, for purchase of the said truck, the O.P. No. 2 paid the aforesaid amount and from time to time, as per the stipulation, was paying the loan amount. Though he paid Rs. 1,80,000/- but the accused No. 1 provided the receipt for Rs. 1,20,000/- with an assurance, later on receipt for the full amount will be handed over to him. The receipt which was handed over, was raised in the name of original owner. On his objection, assurance was given that the receipt will be given in his name after change of the name in the owner book. Relying on the statement of the accused persons, the complainant, as alleged, handed over the draft to Anil Kalla and from time to time, the complainant was paying the money in instalment and every time, pretended to hand over the receipt but did not give the same in token of the payment of the said amount. It has been further alleged that on 30th May, 2008, the accused No. 2 called the complainant in the Bank and handed over the documents and owner book changing the registration Number as NL-01D-8346. The complainant has further alleged that he had changed all tyres of vehicle thereby incurred the expenses of heavy amount. It has further been stated that he had already paid total amount of Rs. 8,75,500/-. Only one more instalment was left to be paid. It has further been alleged that all the accused persons in furtherance of common intention, on 16th September, 2008 forcibly and illegally recovered the said truck. After that he had sent the legal notice which was never replied. Allegation has been made, they are in the habit of committing fraud and the petitioner suffered loss of Rs. 2,50,0007 - on account of replacement of new tyres of the truck.

(2.) Counsel for the petitioner has submitted that it is admitted fact that one Babul Chandra Paul had purchased the truck from the loan advanced by the Bank and the said truck was in hypothecation. It is also undisputed fact that Babul Chandra Paul did not return the said loan amount, accordingly, his loan account was declared NPA. It has further been stated that as the truck was traceless, they were making frantic enquiry and they could know the said truck was in possession of the complainant and replaced registration number with Nagaland which itself shows the malicious intention of the complainant. In terms of the agreement between the Bank and Babul Chandra Paul in a case of default/violation to pay the loan amount, the Bank had an authority to salvage the vehicle in hypothecation and the complainant was in Illegal possession of the vehicle, the Bank had all authority to recover the vehicle from the possession of complainant.

(3.) Counsel for the petitioner submits that the action of Bank in taking possession of the truck will not constitute criminal offence, may be a civil dispute between the Bank and the loanee and the Bank in the event of violation of payment of loan amount, as per the terms of agreement, had power to recover the truck.