Private complaint
practicing advocate
(Querist) 14 September 2018
This query is : Resolved
Respected Learned Counsel
I came across to one case which is partly civil and partly criminal
Facts of the case
One credit society of MSEDCL Employee had given the loan of three lacs to the original borrower and against the loan four MSEDCL Employee stood as a guarantor.The original borrower hardly paid some amount for eight months and after that he was dismissed from the MSEDCL Department for remaining absent for a continous period of one year.The credit society had issued a notice to the guarantor and the credit society after issuing a notice the credit society had initiated action against the guarantor after one year.At present the four guarantor has cleared all the liabilites of the original borrower who is ran away to other state or may be to foreign countries as the original borrower did the hotel management course but his relative is still present in india.The loan was disbursed on the temporary address of the original borrower and as per the records of the employee the address of the original borrower is of gujarat.Now after clearing the loan the guarantors wants to initiate criminal action against the original borrower in order to punish the original borrower for cheating and breach of trust.For recovery purpose they want to file a civil suit against the original borrower.
I had told the four guarantor to submit online complaint and after that they got a call from the police station and after listening facts of the case they told the guarantor it is purely of civil in nature and if possible bring an order from the court.I was continuously focusing on the intention of the original borrower since at the time of applying for the loan the intention is to cheat the guarantor only because the MSEDCL Employee salary is already attached with the credit society and it was not in the knowledge of four guarantors.Same act was repeated by the original borrower from other credit society also.Now it become the tendency of the original borrower to cheat the guarantor.
I would like to know that is it possible for guarantor to initiate criminal action against the original borrower for cheating?
If so please provide me the citation
Please provide me your valuable advice.
Kind Regards,
Advocate-Pradeep Mishra
I am also in the linked in,twitter account by the practicing advocate pradeep mishra.
Guest
(Expert) 14 September 2018
Dear Mr. Pradeep Mishra, Practising Advocate,
I wonder to know, if you are really a practising advocate, if unable to make distinction between a simple civil case and a criminal case.
You have stated, "I came across to one case which is partly civil and partly criminal." By the way, as a practising advocate, can you clarify, what according to you was found to be a criminal act on the part of the borrower towards your client, i.e., the guarantor of the case, when your guarantor client voluntarily furnished guarantee for repayment of loan by or far and on behalf of the borrower?
Rather, according to me, had the guarantor failed to fulfill his guarantee by repayment of loan, only that was he, who would have been charged with a criminal conspiracy for cheating the credit society for getting a loan for the dishonest and deceitful borrower.
I wonder to know, if your client was not sure about the honesty and integrity of the borrower, on what basis, he stood guarantee for the borrower?
Your client should better think for recovery of amount paid for and on behalf of the borrower.
If the case has some reality and you feel the necessity of quoting the citation, you may have to search for requisite citations by yourselves.
Kishor Mehta
(Expert) 14 September 2018
Criminal proceedings should be filed for cheating and Civil proceedings, subject to Law of Limitations, should be filed for recovery of the amount.
Guest
(Expert) 14 September 2018
Of course, as per the advice of the expert, a good opportunity for doubling your fee from the client, irrespective of the result of criminal case!
Best of luck!
