ORDER
Aftab Alam, J.
1. These two cases are directed against the same cognizance order and similar reliefs are prayed for on behalf of the petitioners in both the two cases. These cases were, therefore, heard together and are being disposed of by this common order.
2. Heard Mr. Rana Pratap Singh, Senior Advocate appearing for the petitioners in the two cases and Mr. Ashwini Kumar Sinha, counsel for the complainant-opp. party No. 2 who is the same person in both the cases.
3. There is a single petitioner in Cr. Misc. No. 28931 of 2003. He is the Managing Director of Bihar State Credit and Investment Corporation (‘the Corporation’, hereinafter). In Cr. Misc. No. 29422 of 2003 there are six petitioners who are officers and staff of the Corporation. The petitioners in the two cases seek to challenge the order, dated 2.8.2003 passed by a Judicial Magistrate of the 1st Class at Gaya in Case No. C741/2003/TR 982/2003. By the impugned order the Magistrate took cognizance of offences under Sections 420, 406, 409, 425, 447 and 120-B/34 of the Penal Code and summoned the accused-petitioners for facing trial.
4. It may be noted here that the cognizance order appears to have been passed without much application of mind. In the order Section 425 of the Penal Code is also mentioned in regard to which cognizance was taken. The Magistrate obviously over-looked that Section 425 is merely a definition section and the penal section for the offence is 426.
5. The impugned order taking cognizance was passed on the basis of a complaint filed by the complainant-opp. party No. 2. In the complaint he described himself as the Director of a company under the name and style of M/s. Hotel Nanaksons (P) Limited. It is stated in the complaint that the complainant’s company had taken a loan from the Corporation for setting up a 3 star hotel at Gaya, called Hotel Siddharth International. On going through the complaint, it becomes apparent that the loanee (complainant-opp. party) defaulted in the repayment of loan though the fact is sought to be covered up by saying that there was a dispute between the loanee and the Corporation in regard to the rate of interest etc. It is further stated in the complaint that in regard to repayment of the loan, a serious dispute arose between the parties and the complainant filed a title suit, being T.S. No. 69 of 2002 in the Court of Principal Sub-Judge, Gaya. It is also stated that against the order passed in the suit with regard to appointment of receiver, an appeal being Misc. Appeal No. 22/2002 was pending before the Court of Additional District Judge VIII, Gaya. The petitioners, accused in the complaint are described as the officers and staff of the Corporation and mainly two allegations are made against them. Both the allegations on their face appear to be fanciful, unconvincing and beyond imagination. First, it is alleged that on 13.6.2003 the accused, disregarding the pendency of the suit forcibly occupied the hotel, took over its assets and sealed the complainant’s business, namely Hotel Siddharta’s International. It is further alleged that under the pretext of taking over its management and assets and preparing an inventory the accused removed a number of moveable articles, belonging to the Hotel.
6. The second allegation is that in order to settle the dispute the complainant-opp. party handed over to the accused five post-dated cheques for an aggregate amount of 3 lacs. It is alleged that in terms of the settlement, on receipt of the cheques the Hotel was to be handed back to the complainant who would reopen and run it but the accused petitioners were not supposed to present the cheques for being credited to the Corporation’s account, in breach of the settlement the complainant was not allowed to resume possession of the Hotel and further the accused petitioners presented those cheques to the bank for payment. No payments were, however, made by the bank because in the meanwhile the complainant had given the stop-payment instructions since the petitioners had violated the agreement. In short, it is alleged that in taking over the assets of the Hotel and in presenting the cheques given by the complainant to the Bank the accused petitioners had committed the offences of dacoity, cheating, misappropriation, mischief, criminal trespass and defamation in conspiracy with each other,
7. On the basis of the complaint the Magistrate took cognizance of offences as indicated above.
8. The inherent falsehood of the complainant’s allegations are manifest on a plain reading of the complaint without taking into account the attending circumstances and this Court finds it both surprising and disturbing that the Magistrate over-looked the intrinsic improbability of the complainant’s case and deemed fit to take cognizance of offences and to summon the accused-petitioners for trial. The admitted position is that the complainant had taken a loan from the Corporation (though the large amount of the loan is not disclosed). The complaint has also writ large on it that the complainant had defaulted in its repayment. It is also clear from the complaint that the accused- petitioners had no personal stakes in the matter and they were not acting in any personal capacity. It is also undeniable that there was no order or direction from any Court or authority restraining the Corporation and its official from taking any coercive measures for realisation of the loan along with interest. In those facts and circumstances that are evident from the complaint itself, one fails to see what offences would be committed by the accused-petitioners by their action of putting the hotel premises under attachment and taking an inventory of its properties. If Courts were to start criminal proceedings against the officials and functionaries of financial institutions for taking measures for recovery of loans, it would become impossible for the financial institutions to recover the loans, which, as it is, they find extremely hard to do in this state.
9. The second allegation appears to be even more unbelievable. According to the complainant, there was a settlement between the parties under which the hotel was to be handed back to the complainant on receipt of the five post-dated cheques given by him but at the same time the accused were not supposed to present those cheques to the bank for payment. In other words, he was to be handed over the hotel for nothing and one fails to see what the Corporation would do with the cheques if those were not to be presented for payment.
10. As seen above, the allegations made in the complaint appear to be quite false and baseless on their face value and a careful and prudent approach would have exposed their falsehood in no time. In addition to this there are certain undeniable surrounding facts and circumstances and seen in the back-ground of those facts the complaint filed by the complainant opp. party, and the proceedings arising from the complaint appear to be the grossest abuse of the process of Court.
11. The complainant had taken a loan of Rs. 66.84 lacs from the Corporation. The loan amount on accrual of interest swelled upto 292.41 lacs, as on 30.9.2001. The repayment of loan was badly and chronically in default. On 31.3.2002 the Corporation made a requisition for certificate for recovery of its loan amounting to Rs. 292.41 lacs. A certificate was issued against the complainant for recovery of the loan under the provisions of the Public Demands Recovery Act and a notice under Section 7 was issued to him in the certificate case. At that stage the complainant and his brother came to this Court in CWJC No. 8604 of 2002, challenging the proceedings under the P.D.R. Act. That writ petition was dismissed by this Court by order, dated 19.12.2002.
12. It appears that an attachment order was passed in the certificate proceedings on the basis of which the Managing Director of the Corporation requested the District Magistrate, Gaya to depute a Magistrate with police force for preparing inventory of the properties of the loanee hotel, The District Magistrate, Gaya deputed a Magistrate with police force under whose protection the officers of the Corporation took possession of the hotel on 13.6.2003 and an inventory of the hotel’s articles was prepared by the Magistrate on the same day.
13. All these facts were knowingly and deliberately withheld by the complainant in his complaint.
14. It may also be noted here that the complainant had field Title Suit No. 69 of 2002 in the Court of Subordinate Judge, Gaya for a decree of permanent injunction, restraining the defendants (the Corporation and its officials) from giving illegal threats of recovery of their dues otherwise than in due process of law or to interfere with the proper running of business of the hotel. In that suit an interim prayer was made on behalf of the plaintiff- complainant for appointment of a receiver for running the hotel. The prayer for appointment was receiver was rejected by the Subordinate Judge by order, dated 15.10.2002. Against that order the plaintiff-complainant filed an appeal being Misc. Appeal No. 22 of 2002 before the District Judge. The Misc. Appeal too was dismissed by order, dated 7.10.2003 passed by the Additional District Judge, Gaya.
15. Coming now to the allegations regarding the accused petitioners presenting the cheques given by the complainant to the bank for payment, the inherent falsehood of the allegation is noted above. The fact of the matter is that on the cheques getting dishonoured the Corporation filed a complaint against the complainant opp. party No. 2 for an offence punishable under Section 138 of the Negotiable Instruments Act and Section 420 of the Penal Code. On that complaint cognizance was taken of offences under Section 420, IPC and Section 138, NJ. Act by order, dated 14.5.2003 passed by a Magistrate at Patna.
16. In the light of the aforesaid facts and circumstances the complaint filed by the complainant opp. party No. 2 appears to be utterly false and it amounts to a gross abuse of process of the Court. It ought to have been thrown out at the threshold.
17. From the discussions made above, it is clear that the cognizance order was bad and illegal, ft is one of the cases in which the Court strongly feels that the complainant opp. party deserves to be punished for trying to abuse the process of the Court and to manipulate the judicial process for his own nefarious ends.
18. The impugned cognizance order and the resultant proceeding are accordingly quashed and the Court below is directed to issue a notice to the complainant opp. party to show cause why a case may not be instituted against him under Sections 182 and 211 of the Penal Code. The Court will hear the parties and then proceed in the matter in accordance with law.
19. In the result, these two quashing petitions are allowed with the aforesaid
observations and directions.