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2002 DIGILAW 264 (JHR)

MANI CHORA DAS v. STATE OF JHARKHAND

2002-02-28

VIKRAMADITYA PRASAD

body2002
Judgment : VIKRAMADITYA PRASAD, J. ( 1 ) THIS petition is filed for quashing the order dated 17-2-2001 passed by Sub Divisional Magistrate, Dhanbad Whereby the learned Magistrate has initiated proceeding under Section 145, Cr. PC considering the report of the Circle Officer that there was chances of breach of peace. This order relates to M. P. Case No. 828 of 2000 pending in the Court of S. D. J. M. Dhanbad. ( 2 ) LEARNED Counsel for the petitioner relying on a decision reported in 2001 JWR 106 SC. submitted that when a title suit with regard to same properties is pending in the civil Court and when prayer for injunction has been refused by the competent Court then this proceeding cannot continue then proceed with the case and if he satisfied that there is material for taking cognizance, he will proceed in the matter accordingly. ( 3 ) SHORT facts giving rise to this application as alleged that Opposite Party No. 2, being complainant filed the complaint case which was sent by the learned C. J. M. Palamau to the police station for registering the FIR on the basis of which was registered being Mohammadganj P. S. case No. 12 of 1989 under Section 406, IPC against the petitioner. It is alleged that the complainant was having cordial relationship with the petitioner and was also doing contract work with the brother-in-law of the petitioner as partner. On 25-2-1984 the petitioner had demanded a sum of Rs. 10,000/- from the complainant for purchasing the land which was given to the complainant of the case. Again in the month of September, 1987 the Petitioner demanded motorcycle from the complainant bearing registration No. BRO 5995 for using the same and also stated to return the same to the complainant but could not return the motorcycle to the complainant and when the complainant started demanding money and motorcycle then the accused/petitioner refused to return the same. Thereafter the complainant gave an information to the Superintendent of police. Palamau at Daltonganj but nothing could be done and as such the complaint was lodged on 20-1-1989. After investigation, final report was submitted in this case but the complainant filed the protest petition and thereafter the cognizance was taken by the Court below against which the petitioner filed Cr. Misc. Palamau at Daltonganj but nothing could be done and as such the complaint was lodged on 20-1-1989. After investigation, final report was submitted in this case but the complainant filed the protest petition and thereafter the cognizance was taken by the Court below against which the petitioner filed Cr. Misc. 603 of 1996 in which there was an observation to examine the complain ant on solemn affirmation and proceed with the case and if there is material and after being satisfied. the Court will proceed in the matter after taking cognizance. ( 4 ) PURSUANT to the order dated 25-4-1997 the Court below examined the complainant and after dealing with the evidence on record and also considering the limitation matter took cognizance against the petitioner for the offence under Section 406 IPC Hence this application. ( 5 ) HEARD learned counsel appearing on behalf of both sides. ( 6 ) LEARNED counsel for the petitioner submitted that the whole allegation has been concocted in order to harass the petitioner and actually a sum of Rs. 10,000/- was taken as loan and there was no entrustment or inducement as well as the motorcycle was already returned to the complainant and as such the offence under Section 406 of the Indian Penal Code is not made out and at best it is in nature of civil dispute for which there is no criminal liability on the part of the petitioner. ( 7 ) ON the other hand, the learned counsel for the Opposite Party No. 2 submitted that actually the motorcycle was returned by the order of the Court and there is no illegality in the impugned order as the learned Magistrate has rightly took cognizance. ( 8 ) IT appears that pursuant to the order dated 25-4-1997 the Court below examined the complainant on solemnly affirmation and after being satisfied, took cognizance for the offence under Section 406, IPC after considering and appreciating the evidence on record. ( 9 ) IT is well settled that a criminal proceeding cannot be thwarted merely because a civil case is also maintainable. The Court below considered and appreciated the evidence on record in detail and after being satisfied that prima facie case is made out cognizance was taken. ( 9 ) IT is well settled that a criminal proceeding cannot be thwarted merely because a civil case is also maintainable. The Court below considered and appreciated the evidence on record in detail and after being satisfied that prima facie case is made out cognizance was taken. In the above facts and circumstances, I do not find any merit in this, application at this stage and the impugned order taking cognizance does not require to be interfered and accordingly thisappitcation is dismissed. Her, the petitioner may raise an these points before the trial Court at the appropriate stage of the case. Petition dismissed. --- *** --- .