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2008 DIGILAW 584 (PAT)

Parasuram Koery v. State Of Bihar

2008-04-11

ABHIJIT SINHA

body2008
Judgment 1. The four accused of Protest Petition-cum- Complaint Petition No. 883 of 2006 arising out of Ramgarh P.S. Case No. 103 of 2003, have prayed for the quashing of the entire criminal proceedings including the order dated 18.11.2006, passed therein by Sri R.K. Tripathi, Judicial Magistrate, First Class, Bhabhua, whereby he has taken cognizance under Sections 406 and 420 I.P.C. 2. It appears that one Jawahir Koeri of village Ramgarh filed Complaint Case No. 639(C) of 2003 on 22.7.2003 against the petitioners inter alia alleging therein that Shop No. B-25/10 at Goresera in the premises of Ramgarh Block was allotted to the complainant in the year 1994 where he started a business of readymade garments by investing about Rs. 60,000-70,000/-. However, after sometime the complainant, being a patient of tuberculosis, became unable to run the aforesaid shop in question whereupon the accused Manoj Koeri, a relative of the complainant, alongwith the other accused came to the shop of the complainant and assured him that he would take over the shop and run it and half share of the profit would be given to the complainant. Assured thereby the complainant handed over the shop in question to the accused and initially accused Manoj Koeri used to pay some amounts occasionally. However, since the past one year he stopped paying money whereupon the complainant approached the other accused persons who gave out that the shop was being developed by virtue whereof it would earn more money and he would benefit thereby. 3. It is further alleged that from time to time the accused persons used to obtain his signature on some documents. It is also alleged that when the accused persons completely stopped making payment then the complainant on 21.7.2003 alongwith other witnesses reached at the shop where he was given to understand by the accused persons that they had prepared documents under his signature whereby he had lost ownership of the shop which stood transferred to them. 4. The aforesaid complaint petition as it appears was transmitted to the concerned Police Station under Section 156(3) Cr.P.C. on the basis whereof Ramgarh P.S. Case No. 103 of 2003 was registered under Sections 406, 420, 467, 428, 448, 323 and 120B I.P.C. It further appears that the police after due investigation found the case to be civil in nature and submitted Final Form No. 53 of 2006 against the accused person . It also appears that the complainant had also filed a protest petition with respect to the aforesaid Ramgarh P.S. on 23.8.2003 which after submissions of the Final Form was treated as Complaint Case No. 883 of 2006 and transferred under Section 192 Cr.P.C. to the Court of Sri R.K. Tripathi, Judicial Magistrate, First Class, Bhabhua. The learned Magistrate after holding an inquiry under Section 202 Cr.P.C. took cognizance of the offences under Sections 406 and 420 I.P.C. against the accused persons. 5. It has been submitted by the learned counsel for the petitioners that they are innocent, have committed no offence and have been falsely implicated in the instant case and the entire prosecution version was full of concoction and fabrication. It was also submitted that though the entire prosecution case was civil in nature but the present criminal case had been lodged with a view to grab the property of petitioner no. 1 under undue pressure tactics. In this connection, it was sought to be submitted that Shop No. B-25/10 was originally allotted to the complainant by the Block Panchayat Samiti in the year 1994 on rent of Rs. 120/- per month and subsequently in the year 1995 when the complainant became unable to run the shop due to his illness he fell in need of money for his treatment and approached Parasuram Kushwaha to transfer his right, title and possession over the shop in question on payment of Rs. 51,000/-and on such payment being made the complainant handed over the shop to petitioner no. 1 on 17.4.1995 with a condition that all the liabilities arising therefrom would be on the transferee. An affidavit for the purpose was also sworn by the complainant before the Notary Public, Bhabhua, in presence of witnesses including Hiraman Koeri, the father of the complainant. 6. It was also submitted that on the basis of the transfer the petitioner.no. 2 applied for accepting rent in his name before the Block Development Officer, Ramgarh, who refused the same as the complainant had no right of transfer. Thereafter petitioner no. 2 moved the local M.L.A. who having been satisfied and aware of the fact forwarded that application to the Block Development Officer for accepting rent since petitioner no. 2 applied for accepting rent in his name before the Block Development Officer, Ramgarh, who refused the same as the complainant had no right of transfer. Thereafter petitioner no. 2 moved the local M.L.A. who having been satisfied and aware of the fact forwarded that application to the Block Development Officer for accepting rent since petitioner no. 2 was running readymade garment shop in the -premises in question but notwithstanding the same the name of the original allottee has not been transferred by the authorities concerned. It has finally been submitted that on the materials available on record, it is apparent that none of the ingredients for constituting the offence of criminal breach of trust under Section 406 and cheating under Section 420 I.P.C. are made out against the accused persons and the complainant ought to have filed a civil suit for recovery of possession of the shop in question. 7. Admittedly, the shop in question, allotted to the complainant, was not transferable. Therefore, the diktat of the local M.L.A. could not have prevailed over the law in force. In that view of the matter, the petitioners specially petitioner no. 2, notwithstanding the alleged affidavit sworn by the complainant was running the shop on behalf of the complainant. 8. The submissions advanced by the learned counsel for the petitioners regarding the transfer of the shop and amount having been loaned to the complainant for his treatment and the filing of the affidavit etc. are all matters of defence and involves looking into disputed questions of fact which would hinge inter alia on evidence. When such evidence has not yet been led by the parties, it is not usual for the High Court to go into disputed questions of fact in an application under Section 482 Cr.P.C. In the circumstances, it would not be proper for this Court to interfere with the impugned order or quash the entire criminal proceedings at the present. The petitioners shall, however, be at liberty to raise all these issues at the time of framing of charge. 9. With the aforesaid observations, this application is dismissed.