The main legal point established is that a complaint must disclose an offense and the magistrate must apply judicial mind before taking cognizance and issuing process.

JUDGMENT

Ajoy Kumar Mukherjee, J. - Present application has been preferred for quashing of the proceeding being Complaint Case No.260 of 2018 under Sections 420/447/448/500/506/34 of the Indian Penal Code pending in the Court of learned Judicial Magistrate, Krishnagar, Nadia.

2. The petitioner contended that the petitioner is a finance company and the opposite party no.1/complainant took a loan of Rs.6,23,000/- for purchase of a vehicle. It was agreed that the opposite party no.1 shall repay the said loan by monthly installments and accordingly, a loan-cum-hypothetication- cum-guarantee agreement was executed in between the parties on September 26, 2014 and as per the said agreement, the opposite party no.1 was under obligation to repay the loan amount by 60 monthly installments at a sum of Rs.16,059/-.

3. The opposite party no.1 had defaulted in making payment to the monthly installment and a sum of Rs.2,08,409/- became overdue amount and accordingly, due to non-payment of the monthly installment, the said loan cum hypothetication-cum-guarantee agreement was terminated pursuant to the clause as enumerated in the said agreement.

4. After such termination of agreement, due to default on the part of the opposite party no.1 in making payment, the monthly installment amount in regard to the terms and conditions, the petitioner/complainant through its authorized agents had repossessed the said vehicle on May 2, 2008.

5. It is further contended by the petitioner that the petitioner before taking over the possession of the said vehicle for violation of the terms and conditions a pre-repossession intimation was sent to the local police station where the said vehicle was roaming and after inventory on May 2, 2018, the said vehicle has been placed at the godown of National Parking. Moreover, after repossession of the said vehicle, an intimation was sent to the opposite party no.1 by a covering letter dated May 3, 2018.

6. Further contention of the petitioner is that before repossession of the vehicle in question, the loan agreement was terminated and pursuant to the agreed terms of resolving the dispute through arbitration, the said company approached before the learned Arbitrator under Section 17 of the Arbitration and Conciliation Act and learned Arbitrator has passed an order on February 16, 2018 for repossession of the said vehicle by passing an award in favour of the said company. In the meantime, the opposite party no.1 has filed an application under Section 156(3) of the Code of Criminal Procedure on August 13, 2018 which was treated as complaint under Section 200 of the Code of Criminal Procedure with an allegation of commission of offence under Sections 420/447/448/500/506/34 of the Indian Penal Code referring to an alleged incident of April 23, 2018 that is after a lapse of four months, which is registered as complaint case No. 260 of 2018 before the court of learned Chief Judicial Magistrate, Krishnanagar, Nadia and thereafter, after taking cognizance, the case was made over to the learned Judicial Magistrate, 3rd Court, Krishnanagar for further proceeding.

7. Mr. Sabir Ahmed, learned counsel for the petitioner, submits that on perusal of the said complaint, it would be clear that there has been no disclosure of any offence and learned Magistrate without applying his judicial mind, has mechanically took cognizance of the offence without mentioning the offence in respect of which he has taken cognizance. Moreover, the learned Magistrate has issued process against the petitioner under Section 420 of the Indian Penal Code which deals with cheating and dishonestly inducing delivery of property but in the instant case, there has been no inducement on the part of the petitioner. On the other hand, complainant was under an obligation that pursuant to the agreement, he would pay the monthly installments but she has failed to do so and in such circumstances, the ingredient under Section 420 of the Indian Penal Code is seriously lacking which