IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.14625 of 2009
1. Prasun Kumar Choudhary, S/O-Hari Prasad Choudhary
2. Vijaya Jha @ Vijaya Rani, W/O-Prasun Kumar Choudhary
Both resident of Mohalla-Professor Colony, Rangbhumi Maidan, P.S.- K. Hat,
District-Purnea, present address in premises of Mahila College, Purnea.
..........................Petitioners
Versus
1. The State of Bihar
2. Seema Devi, W/O-Uday Shankar Prasad Singh, Mohalla-Prabhat Colony, P.S.-
K. Hat, District-Purnea .......Opposite Parties.
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For the Petitioners :- Mr. Sidharath Prasad (Adv.)
For the Respondent :-Mr. Ramakant Sharma (Sr. Adv.)
Mr. Narendra Kumar Singh
For the State :- Mr. Kalyan Shankar (A.P.P.)
05 06.09.2011 Heard learned counsel for the petitioners as well as
learned Additional Public Prosecutor for the State and also learned
counsel for Opposite Party No. 2.
This petition under Section 482 of the Cr.P.C. has
been filed on behalf of the petitioners, who are accused in
Complaint Case No. 1978 of 2008, for quashing order dated
02.03.2009 passed by learned Judicial Magistrate, Purnea in above
stated Complaint Case No. 1978 of 2008 (wrongly mentioned in
first paragraph of the petition that the impugned order dated
02.03.2009 has been passed by Chief Judicial Magistrate, Purnea in
K. Hat P.S. Case No. 363 of 2006). The learned Judicial
Magistrate, Purnea has passed the impugned order dated
02.03.2009 by which he having found prima facie case under
Section 420 of the Indian Penal Code against the petitioners,
ordered to issue notices to them to procure their attendance for
facing trial.
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The brief fact, which lies to file this quashing
petition, is that Opposite Party No. 2, namely, Seema Devi filed
complaint case bearing Complaint Case No. 1685 of 2006 in the
court of Chief Judicial Magistrate, Purnea against the petitioners
alleging therein that her husband, namely, Sri Uday Shankar Prasad
Singh runs a school, namely, Mount Carmel English School at
Prabhat Colony, Purnea. The petitioner no. 1, namely, Prasun
Kumar Choudhary was working as principal of the said school
since long back. Petitioner no. 1 wanted to purchase a piece of land
for which he was in need of money and he demanded a sum of
rupees two lacs as loan from the husband of Opposite Party No. 2
and assured him that he will repay the loan by adjusting rupees
four thousand per month from his salary and the rest amount will
be paid by him by the end of the year 2005 after selling the lands at
his native village. The petitioner no. 2 used to visit the petitioner
no. 1 at the premises of above stated school. Since the husband of
Opposite Party No. 2 had no bank account in his name and the
bank account stood in the name of Opposite Party No. 2, the
petitioners approached the Opposite Party No. 2 and made the
above stated demand and also gave the above stated assurance to
the Opposite Party No. 2. Subsequently, having trusted upon the
petitioners, the Opposite Party No. 2 gave rupees one lac eighty
thousand to petitioners on different dates. Further, the case of
Opposite Party No. 2 is that she gave rupees one lac forty thousand
through cheques to petitioner no. 1 on different dates whereas
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rupees forty thousand was paid by her in cash but after taking the
above stated amount petitioner no. 1 stopped coming to the above
stated school and thereafter, when Opposite Party No. 2 as well as
her husband contacted the petitioner no. 1 at his resident and tried
to know the reason of not coming to the school from petitioner no.
1, he gave unsatisfactory answer and again when Opposite Party
No. 2 and her husband demanded the above stated amount on
several occasions, the petitioner no. 1 refused to repay the
aforesaid amount and also misbehaved with them. The Opposite
Party No. 2 along with her husband went to concerned police
station on 30.07.2006 to lodge a report and narrated the above
stated incident to Officer-in-Charge of concerned police station and
on the request of Officer-in-Charge of concerned police station, the
Opposite Party No. 2 gave her grievances in writing to the above
stated police official but the above stated police official did not
register any case against the petitioners and, thereafter, Opposite
Party No. 2 filed above stated complaint case bearing Complaint
Case No. 1685 of 2006.
Having receipt the above stated complaint case, the
learned Chief Judicial Magistrate, Purnea sent the aforesaid
complaint petition to concerned police station under Section 156
(3) of the Cr.P.C. for institution of first information report and
investigation. The police registered K. Hat P.S. Case No. 363 of
2006 for the offences under Sections 419 and 420 of the Indian
Penal Code on the basis of above stated complaint petition and
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investigated the matter. After due investigation, police submitted
final form showing the accusation untrue and also prayed for
initiation of proceeding under Sections 182 and 211 of the Indian
Penal Code against Opposite Party No. 2.
It appears from certified copy of order sheets passed
in K. Hat P.S. Case No. 363 of 2006 corresponding to G.R. No.
1891 of 2006 that Opposite Party No. 2 filed a protest petition
against the investigation of police in the above stated police case.
Furthermore, it appears from the order sheets of K. Hat P.S. Case
No. 363 of 2006 corresponding to G.R. No. 1891 of 2006 that
having receipt the final form, learned Chief Judicial Magistrate
issued notice to Opposite Party No. 2 and subsequently, learned
Chief Judicial Magistrate proceeded on protest petition treated it as
complaint petition. Though, it is not clear from the record as to
whether the learned Chief Judicial Magistrate accepted the final
form of K. Hat P.S. Case No. 363 of 2006 as submitted by the
police after due investigation or not but it appears to me that the
learned Chief Judicial Magistrate, Purnea proceeded on protest
petition treating it as complaint petition after acceptance of final
form submitted in K. Hat P.S. Case No. 363 of 2006. It further
appears from the record that the aforesaid complaint case was
transferred to the court of Judicial Magistrate, who conducted an
enquiry and passed impugned order dated 02.03.2009 in the
manner as stated above.
Notice was issued to Opposite Party No. 2 by this
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Court and she appeared before this Court by filing Vakalatnama
through her learned counsel and subsequently, this Court admitted
the present petition for hearing.
Learned counsel appearing for petitioners submits
that no case under Section 420 of the Indian Penal Code is made
out because as per case of the Opposite Party No. 2, she had given
the amount in question to the petitioners as loan and there was no
intention of petitioners to cheat the Opposite Party No. 2 at the
time of taking the above stated loan amount. It is further contended
by him that there is noting on the entire record to show this fact
that there was any intention of cheating from very inception of
taking the loan and mere assurance given by the petitioners to
return the amount in question does not constitute an offence under
Section 420 of the Indian Penal Code. To fortify his contention, he
relied upon a decision reported in 2007 (2) PLJR Page-219
Subesh Kumar and Anr vs. State of Bihar and Anr in which this
Court has observed that if there is no allegation against the accused
that from very inception there was any intention on the part of the
accused to cheat the complainant, mere simple allegation of
assuring the complainant that alleged lended money would be
returned by other co-accused does not constitute an offence under
Section 420 of the Indian Penal Code as there is complete lacking
of important ingredients for making out prima facie case under
Section 420 as well as 406 of the Indian Penal Code. Another
decision cited by learned counsel for the petitioners is (2005) 13
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Supreme Court Cases 697 in which Hon’ble Apex Court of this
country has held that in absence of any averments in the complaint
so as to infer fraudulent or dishonest inducement having been made
by the accused, pursuant to which the complaint parted with his
money, it cannot be said that the accused had cheated the
complainant.
It is further contended by him that as per case of
Opposite Party No. 2, she made payment of rupees one lac forty
thousand to petitioners through cheques which had been issued by
her on different dates but Annexure-4 to this petition reveals that
all the five cheques were issued either in the name of husband of
Opposite Party No. 2 or in favour of the complainant herself. So,
the aforesaid materials clearly suggest that not a single cheque had
been issued either in the name of petitioner no. 1 or in the name of
petitioner no. 2. It is further contended by him that in her
complaint petition bearing Complaint Case No. 1685 of 2006, she
has nowhere stated that the cash amount was paid to the petitioners
in presence of any other person rather a vague statement in respect
of payment of the alleged cash amount has been made by the
Opposite Party No. 2 in her first complaint case bearing Complaint
Case No. 1685 of 2006 but subsequently, in course of enquiry of
Complaint Case No. 1978 of 2008, she as well as her witnesses
developed the story and stated that the alleged cash amount was
paid by the Opposite Party No. 2 in presence of witnesses, namely,
Mahmoodul Hasan, Manoj Kumar, Ratnesh Kumar Jha and
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Ramchandra Jha and, therefore, the aforesaid complaint case
bearing Complaint Case No. 1978 of 2008 is nothing but only the
abuse of process of the law.
On the other hand, learned counsel appearing for
Opposite Party No. 2 supported the impugned order and submitted
that a prima facie case under Section 420 of the Indian Penal Code
is made out against the petitioners because having taken the
advantage of faith of the Opposite Party No. 2, the petitioners
cheated her as well as her husband. It is further contended by him
that though the complaint petition has been poorly drafted but the
averments made in the complaint petition clearly constitute a prima
facie case under Section 420 of the Indian Penal Code and,
therefore, the learned court below has not committed any illegality
in the impugned order.
Certain facts are admitted between the parties. It is
an admitted position that initially, Opposite Party No. 2 filed
complaint case bearing Complaint Case No. 1685 of 2006 which
was converted into K. Hat P.S. Case No. 363 of 2006 and after due
investigation, police submitted final form finding the accusation
untrue and the Opposite Party No. 2 filed a protest petition against
the investigation of the police and learned Judicial Magistrate,
Purnea proceeded on the basis of aforesaid protest petition as
learned Chief Judicial Magistrate, Purnea treated the aforesaid
protest petition as complaint petition.
It is the case of the Opposite Party No. 2 that
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petitioner no. 1 had taken the alleged amount as loan and there is
no averment in the complaint petition that at the time of taking the
aforesaid loan there was intention of petitioner no. 1 to cheat the
Opposite Party No. 2. It is further case of Opposite Party No. 2 that
first cheque was issued by her on 17.07.2004 whereas last cheque
was issued on 09.07.2005. The aforesaid fact is evident from
perusal of Annexure-4 to the petition. It is further case of the
Opposite Party No. 2 that all the transactions took place between
17.07.2004 to 09.07.2005. It is further case of Opposite Party No. 2
that petitioner no. 1 had assured her to return the entire amount till
the end of year 2005, if after deducting rupees four thousand per
month from his salary, the loan amount is not adjusted. It is further
case of the Opposite Party No. 2 that petitioner no. 1 stopped
attending his duty after taking the loan amount. Annexure-4 to this
petition reveals that allegedly, first cheque was issued by rupees
fifty thousand. So, even if, the story of Opposite Party No. 2
assumed to be true, then also, it is apparent that petitioner no. 1
stopped attending his school after taking the aforesaid amount but
in spite of that the rest cheques were issued because there is
nothing on the entire record to show this fact that any deduction
was made from the salary of the petitioner no. 1 after issuance of
first cheque dated 17.07.2004. Apart from this, it would appear
from Annexure-4 to this petition that almost all the cheques in
question were either issued in the name of husband of Opposite
Party No. 2 or in her name itself. So, the aforesaid fact also does
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not support the allegation levelled against the petitioners.
Moreover, the only allegation against petitioner no. 2 is that she
accompanied petitioner no. 1 at the time of taking amount in
question but the aforesaid fact has not been stated by the witnesses
in course of enquiry which is evident from perusal of Anneuxre-5
series to this petition.
In the light of aforesaid discussions, I am of the
opinion that learned counsel appearing for the petitioners has
rightly submitted that no case under Section 420 of the Indian
Penal Code is made out even the averments of the complaint
petition and materials available on the record are taken into
consideration and the continuance of proceeding of Complaint
Case No. 1978 of 2008 is nothing but only the abuse of process of
the law.
Thus, on the basis of reasons stated above, this
petition is allowed and the impugned order dated 02.03.2009
passed in Complaint Case No. 1978 of 2008 is, hereby, quashed.
In the manner as stated above, this petition stands
disposed of.
Let this order be communicated to the concerned
court for needful.
SHAHZAD ( Hemant Kumar Srivastava, J.)