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2006 DIGILAW 1208 (PAT)

Brajesh Kumar Verma v. State Of Bihar

2006-12-08

SADANAND MUKHERJEE

body2006
Judgment Sadanand Mukherjee, J. 1. This matter relates to quashing the order dated 5.4.2005 where by and whereunder the prayer has been made for quashing the order dated 5.4.2005 passed by Judicial Magistrate 1st Class, Bihar Sharif, Nalanda in Protest-cum-Complaint Case No. 1266 C of 2004 under Secs. 406 and 420/34 of the Indian Penal Code by which he has issued summons against the petitioner and other accused for their appearance. 2. A complaint petition was filed in the Court of Chief Judicial Magistrate, Nalanda at Bihar Sharif against the petitioner and co-accused Jitendra Singh stating therein that the petitioner, who was posted as Assistant Engineer in Irrigation Department in the office of the Chief Engineer, Ranchi (Jharkhand) and accused No. 2, Jitendra Singh, who is contractor at Jamshedpur and does constructs on work in the name of Tushar Constructions, used to contact for giving service to the other persons. The complainant, Opposite party No. 2 runs a shop, namely, Ajanta Lather and Singer Store at Mohalla Ramchandrapur, Bihar Sharif where both the accused persons including the petitioner used to come and this petitioner told the complainant, Opposite Party No. 2, for his service in the Irrigation Department on payment of 4 Laces Rupees. Accused No. 2, non-petitioner, also gave an understanding that if the work of giving service will not be done, the money will be refunded. A sum of Rs. 4 laces was given by the complainant to the petitioner on the understanding that Raj Kumari Chaudhary, wife of the complainant, would be given service. The aforesaid amount was paid through Bank Draft and the accused persons also took signature of the wife of the complainant, Raj Kumari Chaudhary, and Rajendra Pd. Chaudhary on blank papers. When the complainant felt that the accused persons had cheated him, she requested the petitioner and accused No. 2 to return the money on which an amount of Rs. 1 lac 16 thousand was returned. In the complaint petition the allegation is that the rest amount of Rs. 2 lacs and 84 thousand have not been returned to the complainant. 3. The learned Chief Judicial Magistrate sent the aforesaid complaint to the police to investigate the matter and to submit final form. 1 lac 16 thousand was returned. In the complaint petition the allegation is that the rest amount of Rs. 2 lacs and 84 thousand have not been returned to the complainant. 3. The learned Chief Judicial Magistrate sent the aforesaid complaint to the police to investigate the matter and to submit final form. When a final report was submitted on 26.7.2004, there was a recommendation for taking action under Sections 182/211 of the Indian Penal Code, 1860 against the complainant as in the final report the case was found to be false. 4. The case of the petitioner is that the complainant used to do contract work with accused No. 2, Jitendra and he hag been taking money through cheque and cash which the complainant has deposited for contract work. The petitioner relied upon the supervision note, Annexures-2 and 2/1 in which in course of supervision the case was found to be false. 5. The further case of the petitioner Is that the complainant invested the amount in question in contract work and later-on took away the entire money. It is submitted that since the complainant had no account of his own at Ranchi, he deposited the amount of Rs. 2,90,000.00 in the account of the petitioner which the complainant had taken through cheque and cash. 6. The further case is that the final report was accepted and on protest-cum- complaint petition was filed and after inquiry u/s. 202 Cr.P.C. the learned Magistrate, vide order dated 5.4.2005 took cognizance. On behalf of the petitioner it has been submitted that the statement of the witnesses examined in course of inquiry u/s. 202 Cr.P.C. and falsified inasmuch as the complainant and the witnesses had stated that a sum of Rs. 31,000.00 was given to the petitioner on 27.4.2003 and later-on Bank Draft of Rs. 90,000.00 was given on 3.5.2003 which is untrue and falsified from the fact that the complainant had deposited a sum of Rs. 2 lacs 90 thousand out of which Rs. 90 000.00 dated 3.5.2003 was through Bank Draft and another Bank Draft of Rs. 2 lacs was of Rs. 2 lacs, dated 17.5.2003, which will appear from the statement of transaction issued by I.C.I.C.I. Bank, Ranchi. A copy of transaction Sheet is Annexure-4 to the petition. 7. 2 lacs 90 thousand out of which Rs. 90 000.00 dated 3.5.2003 was through Bank Draft and another Bank Draft of Rs. 2 lacs was of Rs. 2 lacs, dated 17.5.2003, which will appear from the statement of transaction issued by I.C.I.C.I. Bank, Ranchi. A copy of transaction Sheet is Annexure-4 to the petition. 7. The petitioner filed a copy of the receipt showing payment of the money to the complainant on different dates, on which the complainant has signed (Annexure-5). The case of the petitioner is that the complainant has invested his amount in contract work and the story that the amount was misappropriated is wrong. 8. a counter-affidavit has been filed on behalf of the complainant stating that there is a suppression of material fact by the petitioner. A revision application vide Cr. Revision No. 114 of 2005 was filed before the Sessions Judge, Nalanda which was dismissed on 17.12.2005. The petitioner is also liable to be prosecuted for swearing false affidavit and hence an F.I.R. has been lodged against the petitioner. It has also been contended by the complainant (Opp. Party No. 2) that the supervision note has been used by the petitioner in the petitioner which is in violation of the order/ direction of the Hon ble Supreme Court in the case reported in - and the police Officers are also liable for prosecution for supplying the same. A prayer has been made to district the Registrar General to institute an F.I.R. 9. On behalf of the petitioner a supplementary affidavit has been filed in which it has been submitted that the petitioner was granted anticipatory bail in Protest-cum-Complaint Case No. 1266 C/2004 by a bench of this Court in Cr. Misc. No. 8823 of 2006, vide order dated 22.3.2006 and in Cr. Misc. No. 8835 of 2006, Annexure-6 and on the basis of the same, the Secretary, Water Resources Department, Government of Jharkhand had written a letter to the Superintendent of Police, Nalanda for making an investigation and to submit a report. The Superintendent of police after due investigation, has written a letter dated 5.1.2006 to the Secretary, Water Resources Department, Govt. of Jharkhand stating that the petitioner is innocent and allegation made by the informant is not true. 10. The Superintendent of police after due investigation, has written a letter dated 5.1.2006 to the Secretary, Water Resources Department, Govt. of Jharkhand stating that the petitioner is innocent and allegation made by the informant is not true. 10. From perusal of the impugned order dated 5.4.2005 it appears that the complainant and other witnesses have been examined u/s. 202 Cr.P.C and after perusal of the entire relevant documents related to Bank Accounts, cheques and legal notice etc. filed by the complainant, considering the materials available on record, the case was prima facie found to be true under Sections 406 and 420/34 Indian Penal Code, 1860 Therefore, it was found that there was sufficient ground for proceeding against the accused persons named in the complaint petition. 11. It is well settled that at this stage the case has to be considered only from the complainants point of view. It is well settled that the accused had no right to produce any document or evidence in his defence at the stage of issuance of process and before issuing the process the Magistrate has to apply his mind and see whether the complaint contains material grounds to prosecute against the accused ? There are several decisions of the Apex Court that the case has to be seen on the, complainants point of view at the stage before arriving at the finding u/s. 204 Cr.P.C. and if prima facie the case is found to be true, which is reiterated time and again by the Apex Court as well as this Court the Magistrate only has to be satisfied that prima facie case is made but on the material placed by the complainant for the limited periods to find out whether there is prim a facie case for issuance of process - . The aforesaid legal position still exists which can also be found in the broad guidelines spelled out while quoting various decisions of this Court in Indian Oil Corporation V/s. N.E.P.C. India Ltd. and Ors. - . 12. In view of the aforesaid legal position, presently the defence cannot be looked out under the circumstances of the case. 13. The petitioner, however may take the aforesaid pleas (sic) at the appropriate stage which shall be considered by the Court below on its own merits without prejudiced by the order of this Court. 14. That the application is dismissed with the aforesaid observation.