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2006 DIGILAW 1300 (PAT)

Amar Nath Gupta v. State Of Bihar

2006-12-22

INDU PRABHA SINGH

body2006
Judgment 1. This application filed under sec. 482 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 23.3.2005 passed by Sri Sunil Kumar Modi, Judicial Magistrate, 1st Class, Katihar in Complaint Case No. CA 762/04 (Dilip Kumar Diwakar vs. Amar Nath Gupta) by which the learned Magistrate is said to have taken cognizance of the offences under sec. 323 and 379 of the Indian Penal Code against the petitioner. 2. From the prosecution case it appears that the complainant-opposite party no. 2 was functioning as an Officer at Bareta Branch (Katihar) of Punjab National Bank. As per opposite party no. 2 he alleged that he was made a victim of conspiracy by the authorities of Punjab National Bank and was compulsorily retired on 23.11.1998, against which he has moved this Court in C.W.J.C. No. 7133 of 1999 which is pending disposal. His further allegation is that his title deed (title deed no. 17510 dated 30.11.1983) submitted to the Bank for securing the loan was not returned back to him. 3. On behalf of the petitioner it has been submitted that this title deed was returned back to him after obtaining his signatures on the relevant papers on the pretext that he wanted to obtain its photo copy and on his assurance that he will return it back which he did not do. 4. Opposite party no. 2 has alleged that the petitioner alongwith some unknown persons had come to him and asked him to return back the.said title deed. On his refusal to do so they became furious, abused and assaulted him and also removed Rs. 2050.00 from his upper pocket. They also snatched away his titan wrist watch worth Rs. 110. On the basis of this complaint petition No. CA.762/04 the learned Judicial Magistrate, 1st Class, Katihar by the impugned order was pleased to take cognizance of the offence under sections 323 and 379 of the Indian Penal Code. 5. On behalf of the petitioner it has been submitted that he is innocent and has not committed and offence. Opposite party no. 2 who has since been compul-sorily retired from service had taken various loans from Punjab National Bank including housing loan from Punjab National Bank Housing Finance Ltd. for which he executed equitable mortgage of the land and deposited the title deed (original sale deed no. Opposite party no. 2 who has since been compul-sorily retired from service had taken various loans from Punjab National Bank including housing loan from Punjab National Bank Housing Finance Ltd. for which he executed equitable mortgage of the land and deposited the title deed (original sale deed no. 17510 dated 30.11.83) though the loan was still out-standing the opposite party no. 2 on 5.2.2004 induced the petitioner to deliver him the original sale deed mentioned above for getting it photo copy and undertook to return it which he did not do as a result of which Complaint Case No. 1195 of 2004 (Annexure-2) was filed against him on the basis of which cognizance against the opposite party no. 2 was taken under sec. 417 of the Indian Penal Code. On account of this complaint petition opposite party no. 2 has filed this false and frivolous case against the petitioner. It is absurd to think that a Branch Manager of Nationalised Bank will go to commit the offences as alleged for the recovery of a title deed of the land mortgaged to the Bank. On these grounds it has been contended that the impugned order be quashed. 6. A counter affidavit has been filed on behalf of the opposite party no. 2. He has denied the allegations made in this petition. According to him the petitioner is not entitled to any relief and, therefore, this application of the petitioner should be rejected. 7. On behalf of the opposite party no. 2 a supplementary counter affidavit has also been filed in which he has contended that number of witnesses were examined under sec. 202 of the Code in support of his allegations made in the complaint petition. The present application is not maintainable under sec. 482 of the Code. 8. A reply to the supplementary counter affidavit has been filed on behalf of the petitioner in which the statements made in the supplementary counter by opposite party no. 2 have been denied. 9. The parties have been heard at length on the various questions of law involved in this case. On behalf of the opposite party no. 2 my attention has been drawn to the fact that by the impugned order no cognizance of the offences under sections 323 and 379 of the Indian Penal Code was taken. 2 have been denied. 9. The parties have been heard at length on the various questions of law involved in this case. On behalf of the opposite party no. 2 my attention has been drawn to the fact that by the impugned order no cognizance of the offences under sections 323 and 379 of the Indian Penal Code was taken. This appears to be correct inasmuch as there is no such order of taking cognizance in the impugned order. It appears that the impugned order was passed on transfer to the Court of Sri Modi under the provision of sec. 192 of the Code before which the cognizance of the offence was already taken before transfer by the learned Chief Judicial Magistrate. Hence this statement appears to be wrong. 10. I have gone through the complaint petition (Annexure-1) and the evidence of witnesses who were examined under sec. 202 of the Code before the impugned order was passed. It appears that three witnesses were examined in this enquiry under sec. 202 of the Code. From their evidences it appears that they fully supported the case of the prosecution. The learned Magistrate on the basis of their evidences has passed the impugned order by holding that prima facie case under sections 323 and 379 of the Indian Penal Code is made out against the present petitioner and, therefore, he has ordered for the issuance of summons on the accused persons. It appears that a similar order has been passed in C.A. Case No. 1195 of 2004 filed against the opposite party no. 2 by Punjab National Bank. 11. At this stage it has to be seen whether the impugned order is liable to be quashed or not. The impugned order shows that the learned Magistrate has properly applied his discretion in the matter and on the basis of the evidence of three witnesses examined under sec. 202 of the Code he has come to the conclusion that a prima facie case against the petitioner has been made out. No doubt in the case filed on behalf of the Punjab National Bank also (Complaint Case No. 1195 of 2004) a similar order has been passed by holding that a case under sec. 417 of the Indian Penal Code has been made out against the opposite party no. 2. No doubt in the case filed on behalf of the Punjab National Bank also (Complaint Case No. 1195 of 2004) a similar order has been passed by holding that a case under sec. 417 of the Indian Penal Code has been made out against the opposite party no. 2. At this stage, however, this is not going to make any difference inasmuch as here I am primarily concerned with the finding whether or not the impugned order issuing summons to the petitioner is correct or not. I see no reason to hold that the impugned order suffers from any legal defect. 12. In this connection my attention has been drawn to the case of State of Haryana and others V/s. Ch. Bhajan Lal and Others, AIR 1992 SC 604 . Drawing my attention to paragraph 108(5) of this judgment it has been submitted that the allegations made in the complaint petition are so absurd and inherently improbable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused. Also my attention has been drawn to paragraph 108(7) of this judgment it has been submitted that where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 13. In my view this will also not apply to the facts of the present case. Case and counter case have been filed on behalf of both the parties. In both of them various allegations have been made. The trial in none of them has stated. At this stage it can not be said whether the allegations made therein are correct or false. Under this circumstance it can not be stated that the criminal proceeding against the petitioner is attended with malafide since there are allegations and counter allegations made in the present case. 14. Also my attention has been drawn to the case of Dr. V.N. Prasad alias Dr. Vidya vs. The State of Bihar & ors., 2004 2 PLJR 507 . The facts of this case are, however, entirely different from the facts of the present case. 14. Also my attention has been drawn to the case of Dr. V.N. Prasad alias Dr. Vidya vs. The State of Bihar & ors., 2004 2 PLJR 507 . The facts of this case are, however, entirely different from the facts of the present case. In this case on behalf of the petitioner it was stated that even if the entire allegation made against him were accepted as correct absolutely no case much less a case under sections 326 and 338 of the Indian Penal Code was made out against him. Also it was pointed out that the complainant in the said case waited for more than six months before filing of the present complaint petition and in the meantime he was trying to fleece money from the petitioner on one pretext or the other. Under such circumstance relying in the case of Punjab National Bank and others V/s. Surendra Prasad Sinha, AIR 1992 SC 1815 it was held that judicial process should not be made an instrument of oppression or needless harassment in the hands of private complainant as vendetta to harass the persons needlessly. Also a reference has been made to the case of S.W.Palanitkar and ors. V/s. State of Bihar & another, AIR 2001 SC 2960 in which the scope of exercise of the inherent power under sec. 482 of the Code has clearly been stated. Hence this decision is also of no help to the present petitioner. 15. In view of the discussions made above it becomes clear that there is no merit in this petition which is accordingly rejected.