IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.34802 of 2010
RAJENDRA HARSHAD PANDYA
Versus
STATE OF BIHAR & ANR
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2. 30-11-2010. Heard Sri Kamal Nayan Choubey,
learned senior counsel appearing for the
petitioner and also heard Sri Nalini Kant
Tripathi, learned counsel for the Opposite
Party no.2
The present petition has been filed
by the above named petitioner with the prayer
of quashing the order dated 7.2.2004 passed
in Complaint Case No.2797 of 2003, Trial
No.1527 of 2010 passed by the Chief Judicial
Magistrate, Patna on 7.2.2004. By the
impugned order the learned Chief Judicial
Magistrate, Patna after holding an enquiry in
the truthfulness of the allegations made in
the complaint petition noted above summoned
the petitioner and other accused persons
named in the petition of complaint as accused
to stand their trial for committing offences
under Sections 386, 506, 420, 468 and 120B of
the IPC.
The facts are broadly not disputed.
The wife of the complainant, i.e., Sarita Roy
2
was the owner of the flat bearing no.201 of
Juhu Prices Co-operative Housing Society
Ltd., Juhu Tara Road, Mumbai-400 049 on
account of the same being purchased on
27.7.1987 and she became a member of the said
housing society on account of the said
purchase. The flat was purchased from Mohini
Bhatia who was the previous owner of the
same.
It is alleged that on 6.3.1991 some
ante-social elements of the locality came
into the above noted flat of the complainant
and after putting the entire family of the
complainant in fear of death forced his wife
Sarita Roy to put her signatures on some
blank stamped and unstamped-papers. The
criminals who did the above act pointed out
to the complainant that Sudhir Roy, the
younger brother of the complainant, was
running in heavy debts due to gambling and
the flat was to be sold by them so as to
paying up his debts. It was further alleged
that on 28.9.1992 the other sets of some
other criminals again did the same thing. It
was alleged that on the basis of the
signatures obtained on blank stamped and
3
unstamped papers Powers of Attorney were
created and ultimately on that strength an
illegal sale deed was executed showing the
sale of the said flat to accused no.2 who was
the Director of A.N.Properties Ltd. It was
alleged that the deed of sale and transfer in
favour of accused no.2 was a sham and void
transaction.
It is also stated in the complaint
petition that the accused no.1 Nafis Ahmad
Khan and other accused persons who were
criminal characters of Mumbai coerced the
complainant and his wife to hand over the
keys of the flat. Subsequently, accused Nafis
Ahmad Khan reached Patna and in league with
other criminals of Patna threatened the
complainant and demanded Rs.30,00,000/- as
also asked him to sign some blank papers, and
accordingly, the complainant out of fear
signed some blank papers on 6.3.1991 upon
which another Power of Attorney was notarized
on 13.3.1991. It is further alleged that the
wife of the complainant was also coerced to
sign a few papers upon which another Power of
Attorney said to be executed by the wife of
the complainant, namely, Sarita Roy was
4
notarized at Patna on 29.4.1992. Those Powers
of Attorney were created in favour of Md.
Taufique Khan accused no.3 who appears to
have sold the flat in favour of the
petitioner in 1992. It is not denied by the
complainant in his complaint petition that he
was not in possession of the flat and some
other persons were in possession of the same
as may appear from the statements made in
paragraph-17 and 18. It futher appears from
the statements made in paragraphs19, 20 and
21 that the accused persons including the
present petitioner committed theft of house
hold articles, like, T.V., Refrigerator, Sofa
etc and threatened him of dire consequences
if he did not withdraw the petition filed by
him under the Maharashtra Cooperative
Societies Act challenging the transfer in
favour of the petitioner in 1992. It is not
denied that in the above noted proceedings
which was placed before the competent
authority under the Maharashtra Cooperative
Societies Act, the present petitioner was not
made a party and that the said petition was
dismissed for default on 20.4.2000. It is
indicated that the present petitioner had
5
purchased the flat on 25.4.2000 from accused
no.2, i.e., A.N. Properties Private Ltd.
It is too well known to be pointed
out that if the allegations on the face of it
appear patently absurd and inherently
improbable the proceedings cannot be allowed
to continue. It is also a known position of
law that if a prosecution appears stemming
from a sense of vengeance or with a sense of
heaping humiliation upon the accused, then in
that case also the same could not be allowed
to be continued. For examining the summoning
order the admitted facts or facts which are
already available on record may also be
considered.
I have already noted down the admitted facts of the case. The patent
absurdity and the inherent improbability in
the case appears the fact that in spite of
being coerced to sign a few papers as back as
in 1991 and 1992, the complainant does not
appear taking steps against the said criminal
acts and was pointing the above facts in the
year 2003. Those acts which have been alleged
committed by the accused persons in the years
1991 and 1992 so as to creating Powers of
6
Attorney said to be executed by the
complainant and his wife could really attract
serious penal consequences. Independently
also, they were serious acts and no
reasonable person could have slept over those
incidents and could not have tolerated those
criminal acts. Likewise, no reasonable person
could be handing over the keys of his house
to any criminal element and if he could do it
he could take resort to recourse prescribed
under law and could never be expected to
forget about it so as to recall it in the
year 2003 after more than a decade.
It is not denied that there was some
dispute which was brought before the
competent authority under the Maharashtra
Cooperative Societies Act vide Case No.344 of
1996 as appears admitted by the complainant
in paragraph-21 of the complaint petition. It
further appears from the same paragraph that
a revision had also been filed before the
Registrar Cooperative Societies, Maharashtra
which bears Revision No.461 of 2002 and those
litigations were brought by the complainant.
It was contended before me that having lost
his case before the authority in Case No.344
7
of 1996 the complainant had filed the
Revision Bearing No.461 of 2002. It was
contended that the whole allegations are a
hoax and do not merit being taken cognizance
of. It was contended that no ransom or amount
was paid nor any extortion appears committed
likewise no offence appears committed under
Sections 420 of the Penal Code.
I have examined the contentions of
the learned counsel for the petitioner and I
find that on admitted facts as also on facts
which were alleged by the complainant the
allegations appear completely absurd and
improbable. It appears that the complainant
was acting with some purpose which was
probably to settle some scores or to force
the accused persons so as to corner them to a
particular point. There was no real reason
for the court below to summon the petitioner.
The proceeding initiated on the basis of said
complaint petition by order dated 7.2.2004 is
hereby quashed.
The petition is allowed.
B.Kr. ( Dharnidhar Jha,J.)