SIR I NEED ALL OF YOUR'S HELP AND VIEW IN THIS MATTER.
AS BANKS FILE CASE AGAINST ME U/S 420,406 CR.P.C(PERSONAL COMPLIANT NOT THROUGH POLICE i.e.FIR) IN CHENNAI AND COURT ISSUE NBW AGAINST ME IN FIRST INSTANCE .
AND
CIVIL SUIT FOR RECOVERY OF MONEY IN SECTION 37 C.P.C IN DELHI.FOR SAME CREDIT CARD ACCOUNTS IN THEY FILE CRIMINAL CASE ALSO.
AS PER BANK OFFICIAL THEY FILE CASE FOR FALSE DOCS. GIVE FOR CREDIT CARD APPLICATION. AFTER USING CARD FOR 4-5 YEARS AND MAKING PAYMENTS ON TIME.
NOW TALK SOME LAWYERS IN DELHI.
THEY SAYS:
1.BANK CAN'T FILE CASE U/S 420,406 AGAINST ME BECAUSE I USE CARD FOR LONG TIME ANY PAID REGULARLY.SO CHEATING AND CRIMINAL TRUST OF BREACH.
2.BANK CAN'T FILE CASE IN CHENNAI AS I TAKE AND USE CARD IN DELHI IT SELF.EVEN IF BANK HEAD OFFICE IN CHENNAI THEY CAN'T DO THAT.
3.BANK CAN'T FILE 420,406 TOGETHER AS BOTH ARE SOME.ALMOST SAME.
4.I SHOW SOME NEWS ARTICLES AND NEWS REPORTS OF HC OF CHENNAI THEY SAID THIS NOT MUCH HELP ME.
NOW I NEED YOUR ADVICE WHAT IS MY COURSE OF ACTION AND ADVICE FOR MY CASE.
WHAT STEP I NEED TO TAKE?
QUASH ON JUDERICATION BASIS.
QUASH ON HC RECENT ORDER BASIS.
ANY OTHER STEP I NEED TO TAKE,
NEWS ARTICLE:
1.
The judgment of the Madras High Court quoted in the news report below could help you in criminal cases.
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Keep off civil disputes, HC tells police
It Will Only Result In Huge Pendency Of Cases: Judge
A Subramani | TNN / TIMES OF INDIA, CHENNAI 13 July 2008
Chennai: Can criminal proceedings be initiated for issues concerning credit cards, personal loans, housing loans, hire-purchase schemes, default in payment of instalments and cheque-bounce cases?
No, is the Madras High Court's emphatic answer.
Neither the judicial/metropolitan magistrates shall entertain any private complaints from corporate firms in this connection, nor shall the police register criminal cases against persons concerned to please their corporate complainants, said Justice R Regupathi.
Not stopping with that, the judge directed the high court's registrar (vigilance) to compile state-wide statistics on the number of private complaints lodged for these civil disputes, and the orders passed by the magistrates concerned.
Narrating the novel system adopted by private financial institutions/banks, the judge said they file private complaints before magistrates and secure an order directing the jurisdictional police to register a criminal case and carry out investigations under Section 156(3) of the CrPc. Despite the fact that the dispute is civil in nature and the police are under no obligation to register any case, police personnel contact the persons and intimidate them to repay the credit card payment or personal loan or hire-purchase amount due to the bank.
Citing two specific cases that came up before him, Justice Regupathi said in both cases though there was nothing to investigate, the magistrate concerned, "with oblique motive to convert a civil case into a criminal case," directed police to register a case and probe.
CURBING ABUSE
Magistrates asked not to entertain private complaints
Police not to register criminal cases in such complaints
Erring magistrates warned of stringent action
HC registrar asked to compile statistics on number of private complaints
Also asked to report on the orders passed by the magistrates concerned
Banks using police to harass defaulters: HC
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also in "judgement of the Supreme Court" wherein it has been decided that the NBW could not be issued at the first instance. It had to be preceede by summons and a bailable warrant.
2.
latest judgment of chennai high court on criminal cases file by banks:
Friday, August 22, 2008
HC: Don't refer civil nature for police investigation
“Transfer cases of civil disputes to High Court”
K.T.Sangameswaran
CHENNAI: The Madras High Court on Thursday directed the Registry to withdraw cases all over the State involving disputes of civil nature in which magistrates have ordered police investigation, call for the records and transfer them to the High Court.
Passing further orders on two criminal original petitions, Justice R. Regupathi said the Registry should place the entire material and particulars before the Chief Justice for orders for an enquiry in those matters. Further proceedings of all those cases pending with the magistrates concerned were stayed till the disposal of the proceedings by the court.
The judge said all records, including vigilance reports, might be placed before the Chief Justice for taking appropriate departmental action against the magistrates, in particular III, X, XVII and XVIII Metropolitan Magistrates, Chennai, and Judicial Magistrate-III, Coimbatore and Judicial Magistrate, Paramakudi.
The DGP was directed to instruct police officers who had received orders from the magistrates in such cases under section 156 (3) of the Cr.P.C and the Station House Officers (SHOs) who had entertained similar complaints in the name of “petition enquiry” to obtain opinion from the Director-General/Additional Director-General of Prosecution/Assistant Public Prosecutors and to file interim/final reports before the jurisdiction magistrates within two weeks. The DGP should file compliance report in three weeks.
Earlier, Justice Regupathi had directed the Registrar (Vigilance), High Court, to collect statistics of private complaints relating to credit cards, personal loans, housing loans, hire-purchase loans and default in payment of instalments and cases under section 138 of the Negotiable Instruments Act, wherein orders for police investigation were passed by magistrates. Accordingly, the Registrar submitted a report.
The judge said the huge number of cases entertained by the six magistrates was quite alarming.
Mr. Justice Regupathi said some judicial magistrates, in collusion with complainant bankers/financial institutions, were entertaining complaints relating to matters of civil nature and passed orders, under section 156 (3) of the Cr.P.C., for police investigation to the undue benefit of financial institutions. In some instances, they were entertaining similar complaints under section 200 of the Cr.P.C.
Vigilance inquiries were conducted, and the complaints entertained were quashed by the High Court. Despite the High Court’s reaction and repeated directives to judicial magistrates not to refer matters of civil nature for police investigation, it had come to light that such trend was still in vogue.
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3.Muthuswamy borrowed money from a private bank. He managed to repay a substantial portion of the loan through regular monthly repayments. But because of certain adverse circumstances in his life, he could not repay a few instalments. He promised the bank he would repay as soon as his situation improved. The bank agreed. Or so he thought, until the postman delivered to him a summons issued by the local criminal court stating that he must respond to charges of having cheated and committed criminal breach of trust. What should he do? Meet a lawyer immediately.
Conversion of pure civil disputes into criminal litigations has increased manifold today despite the Supreme Court frequently frowning upon such a practice. This article deprecates the practice of private financial institutions or other money-lenders in attempting to recover money by dragging the borrower to the criminal court under the garb of having committed criminal breach of trust and cheating under Sections 406 and 420 of the Indian Penal Code respectively.
This process seems to be resorted to particularly in the case of personal loans granted by private banks. The borrower repays a few instalments and, on defaulting, he is dragged to the criminal court for ‘having cheated and committed criminal breach of trust’. The private financial institutions that resort to such methods seem to have a formatted complaint where the only difference from case to case is the name of the borrower and the amount remaining unpaid.
Some cases seem to reflect a contradiction, the complaint being that the money was lent as a personal loan but was used for buying a ‘car’. This may not be tenable as the personal loan can be used for any purpose the borrower wishes.
Purely civil
Of course, clever drafting in the criminal complaint may force the borrower to face the ordeal of a trial under certain situations but, in many cases, it is possible to establish that the criminal process is being used, or more accurately abused, to adjudicate disputes of a purely civil nature. The High Court is empowered to quash a complaint and relieve the borrower if it is established that the disputes are purely of a civil nature.
In many cases involving personal loans it is also seen that the loans are granted by one branch of the bank located in a particular State but the complaint is lodged in another State with a false allegation that the branch in whose jurisdiction the criminal complaint is lodged has granted the loan.
Cases are filed in hundreds, maybe even in thousands, by financial institutions in criminal courts.
There was a time when the financial institutions used extra legal measures to recover money by employing goondas as collection agents. Today, the criminal courts have become the legal substitute. It is unfortunate that the criminal courts take cognisance and issue process in such cases despite the complaint lacking in the necessary allegations.
Such cases are fit instances for invoking the inherent powers of the High Court to quash the process against the borrower.
To illustrate further, the Supreme Court, in the case of Alpic Finance v. Sadasivam, upheld an order of a High Court quashing a criminal complaint for cheating where the borrower had repaid substantial instalments.
The court held that it is difficult to discern that an honest man who borrows and subsequently fails to repay does not necessarily become a cheat. The doors of the High Court may be open in such cases to the distraught borrower.
Apart from quashing pure civil disputes which are given a criminal character, there remains one issue involving cheating and criminal breach of trust on which the Supreme Court is yet to give a pronouncement: ‘Whether a person can be prosecuted for cheating and breach of trust for the same set of facts?’.
It is the author’s opinion that the offences of criminal breach of trust and cheating can never be clubbed together for the same grievance arising out of the same set of facts.
This is because the requirements for establishing the two offences are different. iIn Cheating, there must be an intention to deceive the lender at the very beginning and the money should have been lent on a fraudulent misrepresentation made by the borrower, thereby causing loss to the lender.
In Breach of Trust, there is confidence between the parties at the time of the transaction whereas the borrower subsequently breaches the confidence reposed on him by the lender.
There cannot be confidence between the parties at a time where one is falsely induced by another into doing an act which causes loss to the other. It has long been the practice of lawyers too, unfortunately, to file complaints under both Cheating and Criminal Breach of Trust on the same set of facts.
In Rex v. John Mciver, a full bench of the Madras High Court in the year 1936 explained in elegant English the incompatibility of the two offences for the same set of facts. This seems to have been lost sight of in the following decades.
For some strange reason, the Supreme Court too has not offered a finding on this issue, though it has repeatedly quashed complaints filed under breach of trust and cheating at the threshold on the ground that the criminal process is being abused for deciding a dispute purely of a civil nature.
Abuse of process
Needless to say the quashing of a complaint depends on the allegations made in each complaint.
The High Court will not embark on an enquiry into the truth of the allegations nor will it try balancing the probability of the allegations made by the parties. However, the Courts have frowned upon the practice of recovering unpaid loan instalments by abusing the criminal process.
To conclude, there are many cases where the necessary allegations are missing to even establish the borrower as a cheat or as having committed criminal breach of trust.
Persons thus charged must immediately consult a lawyer, who may be best suited to advise whether the prosecution is maintainable or not. Knocking at the doors of the High Court is an option the borrower may have in such cases, to be relieved from undergoing the arduous process of a trial.
