RAJ KUMAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE two petitioners herein who are arrayed as accused in Complaint Case No. 3709(C) of 2006 have prayed for the quashing of the order dated 29.6.2007 passed therein by Sri Deepak Kumar Singh, Judicial Magistrate, First Class, Patna, whereby he has taken cognizance against the petitioners of offences under Sections 406, 420 and 468 I.P.C. and has directed for issuance of process against them.

(2.) THE complainant, M/s Mahindra & Mahindra Financial Services Ltd., Patna Branch (hereinafter referred to as "the Company") through its Branch Manager, impleaded herein as O.P. No. 2, filed the aforesaid complaint stating inter alia that it was a Non-Banking Finance Company incorporated under the provisions of the Companies Act which advances loans for purchase of motor vehicles and that accused no. 1 had taken a loan of Rs. 1,50,000/- by entering into a Loan Agreement dated 31.11.2002 for purchasing a tractor wherein accused no. 2 stood as his guarantor. It is said that as per agreement, the loan amount was to be paid by both the accused as per Schedule-I thereof totalling Rs. 1,86,000/- by way of monthly instalments within 24 months and that accused no. 2 being the guarantor to the said agreement was jointly and severally liable to make the payment of the entire contractual amount in the light of the terms and conditions of the agreement. It is further stated that accused no. 2 in the said agreement had undertaken to make the entire payment of the agreed amount within the specified period as per repayment schedule in instalments on due dates. It is alleged that as per legal notice dated 13.11.2006, a total amount of Rs. 52,645/-apart from the late charges and other charges as applicable in terms of the agreement remained outstanding with the accused. It is further alleged that several reminder and legal notices were sent to the accused persons, all of which were returned back unserved presumably in collusion with the postal staff as there were no endorsement thereupon assigning reasons for such non-service. On the aforesaid premise it was specifically alleged that the accused from the very threshold stage had the intention to misappropriate the money.

(3.) SO far as the allegation of the commission of the offence of forgery is concerned, there is presently no cogent evidence that a forgery has indeed been committed. The Supreme Court as also this Court has repeatedly observed, times without number, that in case of a dispute of civil nature filing of criminal proceedings should not be entertained or encouraged. In the circumstances, I am of the view that the complainant, if he so desires, can take recourse or seek remedy through civil remedy. However, it is made clear that if during the course of the civil proceedings, in the event the complainant so chooses, it comes to light that fraud and fabrication has been committed by the accused persons, it shall be open to the complainant to take recourse of legal action in accordance with law before the appropriate forum.