Criminal Miscellaneous No.3534 OF 1998
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In the matter of an application under Section
482 of the Code of Criminal Procedure, 1973.
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S. ALI IMAM SON OF S. ZAKIR HUSSAIN, RESIDENT OF
NEW LODGING, BHAWAR POKHAR, POLICE STATION
PIRBAHORE, DISTRICT PATNA.
... ... PETITIONER
Versus
1. THE STATE OF BIHAR
2. MANISH KUMAR AGRAWAL SON OF SRI JAI PRAKASH
AGRAWAL, RESIDENT OF ARYA KUMAR ROAD, MOHALLA-
RAJENDRA NAGAR, POLICE STATION KADAM KUAN,
DISTRICT PATNA.
... ... OPPOSITE PARTIES.
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For the Petitioner : Mr. Naresh Dikshit, Adv.
For the State : Mr. Surendra Prasad Singh,A.P.P.
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P R E S E N T
THE HON’BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar,J. The sole petitioner, while invoking
inherent jurisdiction of this Court under
Section 482 of the Code of Criminal Procedure,
has prayed for quashing of an order dated
5.1.1998 passed by Smt. Rita Mishra, Judicial
Magistrate, Patna. By the said order, learned
Magistrate has taken cognizance for offence
under Section 406 of the Indian Penal Code in
Complaint Case No.1297 of 1997.
2. Short fact of the case is that the
complainant, who claims to be nephew of one
Binod Kumar, had hired a double storied
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building from Binod Kumar and thereafter, he
established a Poly-clinic in the name and style
of Banarsi Das Parasram House, which is
commonly known as B.P. Hospital. It was alleged
in the complaint petition that the petitioner,
who was a doctor by profession, was employed on
the salary basis in the said hospital.
Subsequently, after the hospital started
running smoothly, the petitioner got his wife
and son employed in the said hospital and after
the hospital was fully established and started
showing huge earning the petitioner took over
possession of entire account and record of the
hospital. It was alleged by the complainant
that the petitioner committed an offence of
criminal breach of trust and due to which the
complainant was put to a loss of about
Rs.50,000/-. It was further alleged that the
petitioner illegally took forceful control over
the instruments and equipments of the hospital
in question and virtually, he started to enjoy
all the benefits of the hospital in question
independently. It was alleged that it was a
case of criminal breach of trust. It was
alleged that offence under Sections 201, 341,
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380, 409, 452 and 120B of the Indian Penal Code
was committed by the petitioner. The said
complaint was filed on 13.11.1997.
3. After filing of the complaint
petition, the complainant was examined on S.A.
and in support of the complaint, three
witnesses were also examined and thereafter,
the learned Magistrate by its order dated
5.1.1998 took cognizance of the offence under
Section 406 of the Indian Penal Code.
4. Shri Naresh Dikshit,learned
counsel appearing on behalf of the petitioner
firstly submits that in the entire complaint
petition, there is no allegation of entrustment
to the petitioner. He further submits that in
the complaint petition even the complainant had
not alleged commission of offence under Section
406 of the Indian Penal Code. It appears that
in complaint petition under the heading nature
of offence, mechanically and ornamentally
sections were mentioned as 201, 341, 380, 406,
452 and 120B of the Indian Penal Code. Learned
counsel for the petitioner has further referred
to Annexure-2 to the petition, which was an
order passed by S.D.M., Patna whereby a
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proceeding under Section 107 of Cr.P.C. was
initiated. He submits that since the petitioner
has proceeded with the said case, the present
complaint was filed by the complainant. He
further, by referring to paragraph-12 of the
petition, submits that the petitioner had filed
a case for fixation of fair rent on 27.11.1997
and said case was pending at the time of filing
of the present petition.
5. Sri Naresh Dikshit submits that
the complaint petition does not disclose
commission of offence under Section 406 of the
Indian Penal Code and he further submits that
since the petitioner has filed afore referred
cases, the present complaint petition was
maliciously filed by the complainant. He has
also referred to Annexure-3 series to the
petition, which are typed copy of affidavits
filed by some imminent doctors of Patna and
said doctors have stated on oath that the
petitioner is Director and Proprietor of B.P.
Hospital, Arya Kumar Road, Rajendra Nagar, P.S.
Kadamkuan, District Patna. He further submits
that the complaint petition does not indicate
any criminal offence but at best it can be
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termed as a dispute which is civil in nature
and he has relied upon a judgment of Hon’ble
Supreme Court reported in A.I.R. 2006 Supreme
Court 2780 (M/S Indian Oil Corporation and
another Vrs. E.P.C. India Limited and others)
and 2000(2)SCC 636 (G. Sagar Suri and another
Vrs. State of U.P. and others). He has
specifically referred to paragraph-10 of Indian
Oil Corporation Case (Supra) and paragraphs 7,
8, 14 and 15 of the judgment passed in G. Sagar
Suri Case (Supra). In some and substance, he
submits that if the court is satisfied that the
dispute is purely civil in nature, then this
Court even while exercising power under Section
482 of the Code of Criminal Procedure can
intervene into the matter and quash such
proceeding.
6. He has prayed for quashing of order of cognizance as well as quashing of
entire proceeding subsequent to the order of
cognizance.
7. Shri Surendra Prasad Singh, learned Additional Public Prosecutor has
appeared on behalf of the State. He submits
that perusal of the complaint petition itself
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indicates commission of offence under Section
406 of the Indian Penal Code. He submits that
there is specific averment in the complaint
petition that the petitioner was employed by
the complaint and the records/accounts of the
hospital in question was in the possession of
the petitioner and since the complainant has
alleged that he had with hold the accounts as
well as mis-appropriated the proceeds earned
from the hospital, it can be specifically said
that there was an entrustment and commission of
offence of criminal breach of trust by this
petitioner. He submits that specific case of
offence under Section 406 of the Indian Penal
Code is made out. He further submits that the
complainant was also examined on S.A. and in
support of complaint, three witnesses were
examined. They supported the case of the
complainant. He further submits that at this
stage, the learned court after being satisfied
with the materials available on record has
taken cognizance of the offence and case is at
very initial stage. He submits that it is not
advisable for this Court to intervene into the
matter that too, while exercising power under
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Section 482 of the Code of Criminal Procedure.
He submits that this power is to be exercised
in exceptional and rarest of rare cases.
Accordingly, he has prayed for rejection of the
present petition.
8. In this case, none has come
forward on behalf of the opposite party no.2.
9. I have also examined the materials
available on record as well as complaint
petition and impugned order. Only perusal of
the complaint petition, I am of the view,
indicates commission of the alleged offence.
Submission of Shri Dikshit that since the
petitioner and opposite party-complainant were
in litigating term, the present complaint
petition was filed by the complainant in a
design manner has got no legal force. I have
examined the materials available on record of
the case. Of course, at this stage, I was not
required to look into such document but with a
view to arrive to a just conclusion I had
cursorily perused some of the annexures, which
have been enclosed with the petition. The
Annexure-2 indicates that the order was passed
on 27.11.1997. Similarly, statement made in
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paragraph-12 of the petition indicates that the
petitioner had filed a case for fixation of
rent on 27.11.1997. It appears that after
filing of the present complaint petition, which
was filed on 14.11.1997, the petitioner after
being advised, had taken such steps only with a
view to create a defence in the present case.
So far as Annexure-3 series are concerned, this
further indicates that evidences are being
created by the petitioner in support of his
defence. Moreover, while hearing this petition,
I am not recording any opinion on any of the
enclosures including Annexure-3 series to this
petition.
10. In view of the facts and circumstances, I am of the view that while passing order of cognizance, the learned Magistrate has committed no error and,
accordingly, there is no merit in the present
petition and petition stands rejected.
11. On 20.3.1998, while issuing
notice to opposite party no.2 in the present
case, this Court had directed that in the
meantime, further proceeding in Complaint Case
No.1297 of 1997 pending in the court of Smt.
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Rita Mishra, Judicial Magistrate, Patna shall
remain stayed. Subsequently, on 11.8.1998, the
petition was admitted for hearing and it was
directed that till final hearing of the case,
interim order dated 20.2.1998 shall continue.
In view of rejection of present petition,
interim order of stay stands automatically
vacated.
13. Let a copy of this order be
communicated to the court below forthwith.
( Rakesh Kumar,J.)
PATNA HIGH COURT
Dated 13.4.2010
N.A.F.R./N.H.