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2010 DIGILAW 1025 (PAT)

Sita Sharan Prasad v. State Of Bihar

2010-04-28

SHIVA KIRTI SINGH

body2010
JUDGEMENT 1. Heard learned counsel for the petitioners and learned counsel for the State. 2. The prayer in this application under Section 482 of the Code of Criminal Procedure is to quash the entire criminal proceeding relating to Silao (Chhabilapur) P.S. Case No. 66 of 1997 pending before Judicial Magistrate, 1st Class, Nalanda at Biharsharif and also to quash the order of cognizance dated 11.5.1998. 3. By referring to the complaint petition which is the basis of subsequent FIR, it has been submitted that shorn of unnecessary details, the case of the complainant/informant is only to the effect that a pair of bullocks were sold by him to the accused persons who allegedly promised to pay the consideration money amounting to Rs.23,5007- within a month but even after lapse of several months they did not pay that money and thus they have cheated the complainant/informant. 4. The submission advanced on behalf of the petitioners is that the allegations are not sufficient to constitute a criminal offence of cheating and criminal prosecution should not be allowed to proceed in view of filing of a Title Suit bearing no. 3 of 1997 by the complainant/informant against the petitioners for realization of the aforesaid amount of Rs.23,500/- 5. In law there is no bar against simultaneous pursuit of civil and criminal remedies and the real test laid down by this Court in several judgments is to look into the allegations carefully for finding out whether there existed, allegedly any element of criminal intention at the initial stage of the transaction between the parties. Such allegation of cheating or criminality at the initial stage of transaction between the parties may be inferred on the basis of allegations relating to initial conduct as well as subsequent conduct of the accused. 6. In the present case, according to prosecution case in the complaint petition/ FIR the accused persons promised to pay the consideration money within a fixed period but subsequently took a stand that nothing is due and they have already paid the money. 6. In the present case, according to prosecution case in the complaint petition/ FIR the accused persons promised to pay the consideration money within a fixed period but subsequently took a stand that nothing is due and they have already paid the money. Whether such a stand of the accused is correct or not may have to be decided on the basis of evidence that may be adduced during trial but if the allegation, in the complaint petition be treated as true then it has to be held that criminal intention of cheating was available at the initial stage when the accused insisted on taking the bullocks merely on promise to pay the consideration money but subsequently their stand is that the consideration money has already been paid and for that they have a receipt. There is some explanation with respect to receipt in the petition of complaint and whether the explanation is acceptable or the receipt is genuine or not these issues of facts cannot be decided at the present stage. In view of the aforesaid discussion and considering that after investigation police has submitted charge-sheet against the petitioners and the order of cognizance is based on the said charge-sheet, it is not proper to interfere in the matter at the threshold. Hence, the prayer for quashing of the entire criminal case and the order of cognizance is rejected. This order shall not prejudice the case of the petitioners at subsequent stage and they would be at liberty to raise all their defence at appropriate stage including the stage of framing of charge/discharge.