Sanjivnayan Bajaj And Another vs Santosh Kumar Behera
2023 Latest Caselaw 1879 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.2235 of 2015

  Sanjivnayan Bajaj and Another          ....              Petitioners
                                    Mr. D.P. Dhal, Senior Advocate


                               -Versus-


  Santosh Kumar Behera                    ....         Opposite Party
                                                             None

            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:01.03.2023


1.

Instant petition under Section 482 Cr.P.C. is at the behest of the petitioners assailing the order of cognizance under Annexure-3 passed in 1CC Case No.3026 of 2014 by the learned S.D.J.M., Bhubaneswar, Khurda on the grounds inter alia that the same is not tenable in law and hence deserves to be interferred with and quashed in exercise of the Court's inherent jurisdiction.

2. The opposite party filed the complaint before the learned court below against the petitioners and others with the allegation that he was a regular customer of the accused No.1 company therein and also a consumer of loan and paid the installments without default and being satisfied towards his repayment, he was offered a personal loan in the year 2012 for an amount of Rs.72,000/- which he accepted in good faith and thereafter visited the branch office at Bhubaneswar and submitted all the documents for availing the loan and during that time, it was intimated that the amount ensured on Group Credit Protection Insurance by payment of Rs.5068/- was not sufficient and was advised to take another insurance so that personal loan for a higher limit may be

Sanjivnayan Bajaj and Another Vrs. Santosh Kumar Behera

sanctioned which was accepted and the said amount was deposited. It is further alleged that after the amount was deposited, the opposite party though was promised of the loan but was advised for a loan security and to have an insurance policy in the name of Bajaj Allianz Cash Rich Insurance Plan and accordingly, deposited Rs.23,782/- and waited for the sanction of loan but finally it was not made available. It is being alleged that the company was involved in unfair business practice. After having received the complaint, the learned court below took cognizance of the offence under Section 420 IPC and issued process to the petitioners.

3. Heard. Mr. Dhal, learned Senior Advocate appearing for the petitioners. None appeared for the opposite party despite notice through paper publication.

4. It is pleaded that petitioner No.2 is a Non-Banking Finance Company registered with RBI dealing with financing consumer durable, commercial leading, personal loan etc. It is contended that the opposite party was a customer of the company for which personal loan was offered to him and in turn, he applied for the same, which was to be processed and cleared subject to credit norms. Due to the fact that opposite party had earlier availed loan for purchase of consumer durable product and was not regular in making payment of the EMI, the company filed a complaint which was subsequently withdrawn on receiving the installment dues. Under the above circumstances, it is pleaded that the premium amount was refunded to the opposite party after he did not show any interest for the insurance policy but thereafter, the complaint was filed with an ulterior motive for wreaking vengeance as he could not be successful in having the personal loan sanctioned in his favour.

Sanjivnayan Bajaj and Another Vrs. Santosh Kumar Behera

5. Mr. Dhal, learned Senior Advocate for the petitioners would submit that the offence of cheating is not made out since there was no fradulant act on the part of the company nor the opposite party was induced or deceived in any manner. It is further submitted that the opposite party applied for a personal loan and deposited certain amounts for insurance with Bajaj Allianz Life Insurance Company Limited which is a separate entity and the BFL did not accept the loan application as it could not suit their claim and thereby rejection of application of loan by no stretch imagination can be said to be an act of cheating.

6. Gone through a copy of the complaint as at Annexure-1. The complaint is filed against the BFL. As per the complaint, the opposite party applied for personal loan and submitted all the documents and waited for the sanction which was delayed and in course of events, he made payments for policy insurance which was held not to be sufficient as the risk team of the company was not satisfied and for which he was advised for another insurance so that loan can be sanctioned for a higher limit. It is alleged that despite compliance of all the requirements, the company did not sanction the personal loan hence cheated the opposite party.

7. As alleged by the petitioners, the opposite party had availed loan from Bajaj Finance Limited for purchase of consumer durables and in that connection, he was not regular in paying the EMIs and as a result, an amount of Rs.1,03,965/-was due against him till August, 2014. Admittedly, the sanction of loan was denied by the company. It is also not in dispute that the opposite party had to have an insurance policy which was to cover the risk. The opposite party was returned with the premium amount when the personal loan could not be materialized. According to the petitioners, the premium was returned to the opposite party through a demand

Sanjivnayan Bajaj and Another Vrs. Santosh Kumar Behera

draft dated 23rd August, 2014. The refund letter is at Annexure-6. It is made to appear that opposite party claimed return of premium for an amount of Rs.37,955/- over an amount of Rs.33,186/- with the interest accrued thereon.

8. Applying personal loan and its sanction depends on various factors, such as, the loan history of the customers and the capacity of repayment besides fulfillment of other norms. The opposite party complainant no doubt submitted an application for personal loan and he was advised to have insurance policy as a loan security and in that regard, the premium amounts were deposited by him which was finally returned when the loan could not be sanctioned. As in normal course of business, a process is followed and paraphernalia are to be satisfied before grant of personal loan to a customer. Though the opposite party complainant availed insurance policy on being suggested, it was with a purpose to cover the risk towards loan repayment. Availing loan is distinctly different than having insurance policy for loan security. To have the insurance policy for the purpose of availing loan does not mean that such loan would be sanctioned as the required norms are to be fulfilled. According to the petitioners, the opposite party was a defaulter against loan availed from Bajaj Finance Limited for which a complaint was filed at Kolkata but the same was subsequently withdrawn on receiving installment dues with the penal interest waived off for an amount of Rs.27,600/-. According to the Court, on consideration of the facts alleged in the complaint, the conditions were needed to be satisfied for sanction of personal loan but then it did not materialize which does not mean that the company cheated the opposite party. Moreover, the premium amount was received back although without interest which the opposite party, as rightly pointed out by the petitioners, could have claimed by making an application. Regard being had to

Sanjivnayan Bajaj and Another Vrs. Santosh Kumar Behera

the transaction between the parties and the fact that the loan could not be granted despite the deposit of the premiums by the opposite party for the insurance policy which was to meet the loan security, it cannot be held as an act of cheating as the defined in Section 415 IPC which specifies an act of deception. In the instant case, the element of deception is conspicuously absent since the parties were privy to a transaction with the obligation subject fulfillment of the conditions on sanction of loan. Hence, it would not be justified to allege that the petitioners cheated the opposite party and hence, the complaint cannot be sustained in law.

9. Accordingly, it is ordered.

10. In the result, the CRLMC stands allowed. Consequently, the order of cognizance under Annexure-3 and the proceeding in connection with 1CC Case No.3026 of 2014 pending in the file of the learned S.D.J.M., Bhubaneswar, Khurda are hereby quashed for the reasons discussed herein above.

(R.K. Pattanaik) Judge

U.K. Sahoo/TUDU