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2007 DIGILAW 460 (JHR)

Shiv Kumar Thakur v. State of Bihar

2007-06-15

D.G.R.PATNAIK

body2007
Order Petitioners have prayed for quashing the entire criminal proceeding pending in the Court of Shri A.M. Singh, Judicial Magistrate, First Class, Dhanbad alongwith the order dated 11.6.1998 vide C.P. Case No. 322 of 1998, whereby cognizance for the offences under Sections 323, 341, 379, 406, 506/34 I.P.C. was taken against the petitioners. 2. The main ground advanced in support of the prayer is that the instant complaint has been filed by way of revenge only to harass the petitioners and by abusing the process of the Court and that due to suppression of material facts, the learned court below has been misled to accept the allegation in the complaint petition, as prima facie making out the alleged offences. The other ground is that even reading the allegations in the complaint petition no offence under the aforesaid sections whatsoever is made out against the petitioners, therefore, continuance of the criminal proceedings against the petitioners would amount to abuse of the process of the Court. 3. The case against the petitioners was registered on the basis of a complaint filed by the complainant/Opposite Party No.2 before the learned court below on 13.4.1998. The allegations in the complaint petition are that the Opposite Party No.2 is a salesman under a private firm at Dhanbad and delivers goods to various shops. The petitioner No.1 Shiv Kumar Thakur, being an old acquaintance and having his business of selling coal had approached the complainant on 3.3.1997 with a request to give him a friendly loan of Rs. 5,000/- since he needed to purchase coal and was short of funds and had promised to return the money within one month on his next visit to Dhanbad. Believing him in good faith, the complainant gave the sum of Rs. 5,000/to petitioner no. 1. However, the money was not returned, despite repeated demands and reminders. It is further alleged that after a year later on 10th April, 1998, while the complainant was returning on an auto rickshaw from Jharia after delivering goods at various shops, he sighted the petitioners near a temple at Dhansar. The complainant stopped his vehicle and approached petitioner no.1 demanding return of his money. Reacting violently to the demand, petitioner no.1 allegedly gave out abuses in filthy language to the complainant and began assaulting him with fists and slaps. The complainant stopped his vehicle and approached petitioner no.1 demanding return of his money. Reacting violently to the demand, petitioner no.1 allegedly gave out abuses in filthy language to the complainant and began assaulting him with fists and slaps. Petitioner Nos.2 and 3, who were accompanying petitioner no.1, indulged in the assault on the complainant and further, they restrained the complainant and his vehicle and looted away some goods belonging to the• complainant from the auto-rickshaw worth about Rs.1,000/-. It was on the intervention of the Driver and Khalashi of the auto-rickshaw that the complainant was saving from being further assaulted. 4. In course of enquiry conducted under Section 202 Cr.P.C., complainant and his witnesses were examined and their statements were recorded on solemn affirmation. On going through the complaint petition and statements of the complainant and his witness, learned court below recorded its satisfaction that a prima facie case for the offences have been made out and, accordingly, took cognizance for the offences directing petitioners to appear and face trial. 5. Learned counsel for the petitioners while elaborating the grounds, submits that the complaint has been filed with mala fide intention and entirely on false and frivolous allegations only to wreck vengeance on the petitioners. Learned counsel explains that even as admitted in the complaint petition, complainant and petitioners are residents of the same village within the district of Muzaffarpur. On account of a land dispute, both families are enemical and hostile to each other since long. On 28.3.1997, father of the complainant has lodged a false and frivolous case at Hathauri Police Station, Muzaffarpur on the basis of which a proceeding under Section 107 Cr.P.C. was initiated against both parties and on the same allegations, the complaint petition was also filed before the Court of Chief Judicial Magistrate, Muzaffarpur, which was registered as Complaint Case No. 797 of 1997. However, vide judgment dated 13.7.1999, the case ended in acquittal of the accused persons, who were none else but the own relations of the petitioners. Earlier, on 25.3.1997, the complainant's brother Sanjay Choudhary had indulged in acts of violence against the brothers of the petitioners and against which a complaint was lodged by one Ram Kumar Thakur at the local Police Station at Muzaffarpur. Earlier, on 25.3.1997, the complainant's brother Sanjay Choudhary had indulged in acts of violence against the brothers of the petitioners and against which a complaint was lodged by one Ram Kumar Thakur at the local Police Station at Muzaffarpur. Learned counsel explains further that in the background of such hostilities between the family of the complainant and the family of the present petitioners, it is highly unbelievable that petitioner no.1 would approach the complainant for a loan of Rs. 5,000/and that the complainant would believe petitioner no.1 and part with his money to a person, who is his sworn enemy. Learned counsel explains further that the complainant has suppressed the aforesaid material facts in his complaint petition and has misled the court below to believe the allegations against petitioners and has thereby abused the process of the court. Learned counsel has referred to Annexures 1 to 7, which are the purported documents pertaining to the litigations contested in the courts at Muzaffarpur between the father of the complainant and the members of the family of the accused petitioners. 6. From perusal of the Annexures, it would no doubt indicate that there was hostility and bad blood between the two families, namely that of the complainant and of the petitioners, both of whom are the residents of the same village within the district of Muzaffarpur. However, it also appears that the first complaint indicating the existence of the land dispute between the families was filed by the father of the complainant before the local Police Station on 23.3.1997 in respect of the occurrence dated 23.6.1997. The members of petitioners' family have also filed criminal cases against the members of the complainant's family and all these series of litigations were fought by them in the courts of Muzaffarpur ever since 28.3.1997. 7. The present complaint was, however, filed at Dhanbad by the complainant, who is admittedly employed at a shop at Dhanbad, with reference to the occurrence dated 10.4.1998 and stating that the genesis of the occurrence is the loan of money, which he had given to the petitioner no.1 on 3.3.1997. 7. The present complaint was, however, filed at Dhanbad by the complainant, who is admittedly employed at a shop at Dhanbad, with reference to the occurrence dated 10.4.1998 and stating that the genesis of the occurrence is the loan of money, which he had given to the petitioner no.1 on 3.3.1997. Petitioners have not filed any such document to indicate or suggest that on 3.3.1997, there was any litigation pending between the two families or that there was any hostility between them, which could otherwise render it improbable for the complainant to entertain the petitioner no.1 and to place faith and belief on petitioner no.1. 8. The grounds advanced by the petitioners that the present case has been filed against them on entirely false and frivolous allegations on account of previous enmity becomes, an issue in itself, which could be demonstrated by the petitioners at the trial for better appreciation by the trial court. As regards the argument that no offence whatsoever is made out against petitioners even on the basis of the entire allegations in the complaint petition, the same appears to be misconceived. The complaint contains clear and specific allegation of overt acts of violence, allegedly indulged by the petitioners on 10.4.1998 against the complainant making out a prima facie case for the offences under Sections 323, 341, 379, 506/34 I.P.C. The learned court below has considered the materials on record and has found a prima facie case for the aforesaid offences and sufficient material to proceed with the trial of the accused persons. 9. I find no illegality or infirmity in the impugned order of cognizance as passed by the learned court below nor is there any such material to draw the inference that the complaint against the petitioners has been filed with malicious, vexatious and mala fide intentions to harass petitioners and is an abuse of the process of the Court. In the result, this application having no merit, is dismissed. Let the lower court records be forwarded forthwith to the learned court below.