Narendra Nath Tiwari, J.@mdashThe petitioner has prayed for quashing the cognizance order dated 8.12.2006 passed in Complaint Case No.
1786 of 2006, whereby learned Magistrate has taken cognizance of the offences under Sections 406, 420 and 468 of the Indian Penal Code.
2. It has been stated that only allegation against the petitioner is that the complainant has given a loan of Rs. 1,25,000/-, required by the petitioner
for treatment of his daughter, on the condition that on failure lo return the amount within 4-5 months, he would transfer his Maruti car to the
complainant. It has been alleged that more than four months lapsed but the petitioner did not return the money and now it is found that the paper of
the car, which was given to the complainant, is not genuine. Learned Counsel for the petitioner submitted that the entire allegation is, thus giving
friendly loan to the petitioner by the complainant and not repaying the same by the petitioner. In that admitted position the dispute/controversy
between the parties gives rise to o civil suit and the same does not constitute any penal offence much less as alleged in complaint petition. The
criminal prosecution is wholly illegal and an abuse of the process of the Court.
3. Learned Counsel appearing on behalf of the complainant submitted that the petitioner had taken loan on false assurance to return the money in
4-5 months and failing which to transfer Maruti car in his favour. The petitioner has, thus, cheated the complainant as he has neither returned the
money nor transferred his car in favour of the complainant.
4. I have heard teamed Counsel for the parties. On the plain reading of the complaint and considering the submissions made by learned Counsel
for the parties, it appears that the Complainant is aggrieved due to non-payment of the amount by the petitioner within the stipulated time and not
complying with the term of transferring Maruti car in his favour even after expiry of the agreed period. Even if the said allegations are taken at the
face value the complainant is entitled to take recourse to legal remedy for recovery of the amount/enforcing the said agreement through the process
of law, I find no criminal element in the said allegation which gives rise to a cause of action for instituting a suit or taking any other legal steps for
enforcing the claim.
5. A criminal proceeding is not meant for using the same as an alternative forum for enforcing a civil claim. The complainant has got effective civil
remedy for recovery of the claimed amount and/or other relief
6. I find no allegation disclosing any criminal intent and constituting the alleged offences against the petitioner. I, therefore, find substance in the
submissions made by learned Counsel for the petitioner that criminal proceeding on the said facts is an abuse of the process of the court and is
wholly illegal.
7. Considering the above, this petition is allowed. The order taking cognizance dated 8.12.2006 as also the criminal proceeding in Complaint Case
No. 1786 of 2006 is quashed.
