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2008 DIGILAW 870 (JHR)

Arjun Prasad Singh v. State of Jharkhand

2008-08-05

AMARESHWAR SAHAY

body2008
Order Heard the parties. 2. The prayer of the petitioner in this application is to quash the order dated 20th September, 2000 whereby the cognizance of the offence under Sections 420, 409, 467, 468 and 120(B) of the Indian Penal Code was taken by the Judicial Magistrate 1st Class, Dhanbad in C. P. Case No. 851/2000. 3. Mr. M.B. Lal, learned counsel appearing for the petitioner submitted that even if the allegations made in the complaint petition are taken to be correct in its entirety, no offence is at all made out against the petitioner and therefore, the order taking cognizance against him for the aforesaid offences is liable to be quashed. He further submitted that the complaint was lodged by the complainant against the petitioner and others only due to the fault committed on the part of the then Ex-President and Ex-Secretary, Nilanchal Housing Cooperative Society. 4. The opposite party no. 2 Ramakant Mishra filed the aforesaid complaint petition against four accused persons named in the complaint petition including the petitioner alleging therein that Nilanchal Housing Cooperative Society Ltd. was a registered Society of which Rajendra Kumar Sinha and Dinesh Kumar Sinha were the Ex-President and Secretary whereas Dr. M. P. Jha and Arjun Prasad Singh (Petitioner) were the present Secretary of the said Society. The object of the Society was to provide land to its members on payment of cost for the same. The complainant and, his brother Shrikant Mishra were asked to deposit a sum of Rs. 57,0001- by the then President and Secretary of the Society which was deposited by them. But the Ex-President and Secretary only gave receipt for an amount of Rs. 35,4501- and for the rest amount Le. Rs. 21,5501- they did not give any receipt and on being asked they replied that since the receipt book is under publication and therefore, the receipt may be given to them afterwards. On their assurance the balance amount of Rs. 21,5501- was also paid to those accused persons. Both the accused did not give the receipt of the account on one pretext or the other. On their assurance the balance amount of Rs. 21,5501- was also paid to those accused persons. Both the accused did not give the receipt of the account on one pretext or the other. It is alleged that in spite of payment of cost for the land, the complainant and his brother were not provided any land and when a demand was made by them to the present President and the Secretary of the Society then they replied that since the amount was paid to the Ex-President and Secretary and therefore, it is for them to provide land. The complainant alleged that the accused persons committed fraud on him. They after receipt of the amount of the cost of the land, have devoured the said amount and thereby the complainant was cheated. 5. The learned Magistrate, after perusal of the allegations made in the complaint petition and the statements of the complainant in solemn affirmation as well as the statements of the two witnesses examined during 202 Cr.P.C. found that the prima facie case was made out against the accused persons and therefore, took cognizance against the accused persons as aforesaid. 6. After perusing the allegations made in the complaint petition as well as the statement of the complainant in solemn affirmation, I find that the submissions of Mr. Lal that no offence at all is made out against the petitioner is not correct. However, I, refrain myself from making any further comment on the allegations made in the complaint petition since it may prejudice the case of the either of party. I find that the learned Magistrate did not commit any illegality or irregularity in coming to the conclusion that prima facie case was made out against the accused persons including the petitioner. 7. This Court, in exercise of powers under Section 482 Cr.P.C. cannot substitute its own finding over the subjective satisfaction of the Magistrate in taking cognizance of the offence after finding prima facie case against the accused persons. It is settled law that power under Section 482 Cr. P. C. has to be exercised sparingly and in rare cases. This power has to be exercised in a case where patent illegality has been shown to have been committed by the Court below while taking cognizance or where miscarriage of justice has been done. The present case does not come under any category. 8. P. C. has to be exercised sparingly and in rare cases. This power has to be exercised in a case where patent illegality has been shown to have been committed by the Court below while taking cognizance or where miscarriage of justice has been done. The present case does not come under any category. 8. Accordingly, having found no merit this application is dismissed.