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2010 DIGILAW 1354 (PAT)

Vijay Kumar v. State Of Bihar

2010-06-24

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 28th June, 1997/1st July, 1997 passed by Shri Vimal Kumar, Judicial Magistrate, Patna in Complaint Case No.647 (C) of 1997. By the said order, the learned Magistrate has taken cognizance of the offence under Sections 406, 420, 467 and 471 of the Indian Penal Code and directed for issuance of process against the petitioner. 2. Short fact of the case is that the opposite party no.2 on 5.6.1997 filed a complaint in the court of Chief Judicial Magistrate, Patna, which was registered as Complaint Case No.647(C) of 1997. In the complaint petition, he discloses that he was an independent Investment Advisor and also doing his Computer business having its office in 101, Ashiana Tower, Exhibition Road, Patna. The petitioner was doing business in the name of A.B. Export, having its office at 511, Ashiana Tower, Exhibition Road, Patna. it was alleged in the complaint petition that the petitioner altogether taken shares of different companies worth of Rs.8,08,100/- through the complainant against which he paid a total amount of Rs.4,59,000/- and thus Rs.3,49,100/- remained to be paid. It was alleged that the petitioner had assured the complainant that the balance amount will be paid to the complainant very soon and it was assured by the petitioner that he will neither sell nor transfer those shares to another without making full payment to the complainant. The said transaction had taken place in the year 1992. However, the matter remained pending up to 30th May, 1994. Thereafter, the complainant asked the petitioner to return the share on which the petitioner finally agreed to pay the entire dues along with interest at the rate of 18% per annum and said negotiation had taken place in presence of witnesses on 30th May, 1994 in the office of the complainant. It was also agreed that the petitioner will not transfer or sell any of the share delivered to him in September, 1992 without clearing the said balance. It was further disclosed that maximum period agreed for payment of dues along with 18% @ interest and commission of complainant was of three years. It was also agreed that the petitioner will not transfer or sell any of the share delivered to him in September, 1992 without clearing the said balance. It was further disclosed that maximum period agreed for payment of dues along with 18% @ interest and commission of complainant was of three years. Subsequently, as alleged in the complaint petition, the petitioner closed his business of A.B. Export and vacated the office of Ashiana Tower, Patna and returned to Ranchi with an assurance to follow the agreement reached between them. It was also disclosed that the petitioner always kept the complainant in dark and thereafter, lodged a criminal case at Ranchi on an allegation that the complainant had to give Computer and technical knowhow for starting the Computer Centre at Ranchi for the petitioner, which was not supplied by the complainant and thereby the complainant/ Suchit Kumar cheated the petitioner/Vijay Kumar. It was stated in paragraph-16 of the complaint petition that the Honble High Court of Judicature at Patna, Ranchi Bench, Ranchi had stayed the said proceeding. The complainant further alleged that without making payment of the due balance the accused falsely and fraudulently signed the scripts of all the shares handed over to accused, transferred either in his name or in the name of his wife and received the dividend/right/bonds and, accordingly, it was alleged that the petitioner had committed offences under Sections 420, 406, 467 and 471 of the Indian Penal Code. After filing the complaint petition, the complainant was examined on S.A.and in his support, three witnesses, namely, Sunil Kumar, Shri R.N. Pandey and Ajay Kumar were examined as enquiry witnesses, who supported the claim of the complainant and thereafter, by the impugned order i.e. order dated 21.7.1998/ 28.6.1997, the learned Magistrate was satisfied that prima facie offence under Sections 406, 420, 467 and 471 of the Indian Penal Code was made out and directed for issuance of process for securing attendance of the petitioner. 3. Aggrieved with the order of cognizance and initiation of proceeding against the petitioner, the petitioner approached this Court by filing the present petition. On 12.2.1998, this petition was admitted for hearing. While admitting, this Court had directed that in the meantime, further proceeding in Complaint Case No.647(C) of 1997 pending in the court of Shri Vimal Kumar, Judicial Magistrate, Patna shall remain stayed and order of stay is still continuing. 4. On 12.2.1998, this petition was admitted for hearing. While admitting, this Court had directed that in the meantime, further proceeding in Complaint Case No.647(C) of 1997 pending in the court of Shri Vimal Kumar, Judicial Magistrate, Patna shall remain stayed and order of stay is still continuing. 4. Learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance and the proceeding initiated against the petitioner, submits that the present complaint petition was falsely filed by the opposite party no.2 against the petitioner and moreover, it was out an out a counter blast to the complaint petition, which was filed by the petitioner in the year 1995 itself for cheating the petitioner and committing other offences. It was further argued that out of three witnesses, who were examined as enquiry witnesses in support of the complainant/opposite party no.2 one of the witnesses, namely, Sunil Kumar was accused along with the complainant Suchit Kumar in a complaint case i.e. Complaint Case No.74 of 1995, which was initiated by this petitioner. Learned counsel for the petitioner has referred to the complaint petition i.e. Complaint Case No.74 of 1995, Annexure-2 to the petition, which is at pages 28 to 31. He submits that the petitioner wanted to establish a Computer Training Centre at Ranchi and for that very purpose, he had made payment of Rs.3,33,000/- to the complainant of the present case, namely, Suchit Kumar and one Sunil Kumar, who has been examined as enquiry witness in support of opposite party no.2. It was alleged that the accused persons in Complaint Case No.74 of 1995 had cheated the petitioner and committed offence under Sections 420 and 406 of the Indian Penal Code. Learned counsel for the petitioner further submits that in the present complaint petition i.e. Complaint Case No.647(C) of 1997, the complainant had made an incorrect and false statement in paragraph-16 of the complaint petition, which is as under : "16. That the accused always kept the complainant in dark by giving false assurance and lodged a criminal case at Ranchi with a false allegation that such Suchit Kumar (Complainant) had to give computer and technical knowhow for starting a computer centre at Ranchi for Vijay Kumar which has not been supplied by Suchit Kumar (complainant) which is presently stayed by Honble High Court of Judicature at Patna, Ranchi Bench, Ranchi." 5. Learned counsel for the petitioner has further referred to paragraph-11 of the present petition and submits that the complainant/opposite party no.2 had misrepresented the fact before the court below and in complaint petition, it was incorrectly stated that criminal case filed by the petitioner was presently stayed by Honble High Court (Ranchi Bench). However, the Honble High Court in Criminal Misc. No.1016 of 1995(R) had refused to interfere with the matter at this stage and has further directed the opposite party no.2 to appear before the Magistrate concerned and the matter was still pending. It was submitted by learned counsel for the petitioner that by way of making false statement, the complainant persuaded the learned court below to take cognizance of the offence and, accordingly, he submits that the order of cognizance dated 28th June, 1997/1st July, 1997 as well as entire proceeding is liable to be set aside. 6. Learned counsel for the petitioner has also referred to supplementary affidavit, which was filed on 19.5.2010 on behalf of the petitioner and submits that the petitioner had also filed Money Suit against the complainant and one of the complainant witness, namely, R.N. Pandey. Through supplementary affidavit, it has been clarified that since the dispute in between the parties had already settled in Complaint Case No.74 of 1995 the petitioner left to do any pairwi of the case and thus, the matter ultimately was closed by the court below at Ranchi. Similarly, the Money Suit Nos 58 and 59 of 1975 filed against the complainant and Rameshwar Nath Pandey came to an end after settlement of the issues between the parties. 7. Despite the fact that the opposite party no.2 had entered appearance through filing vakalatnama at the time of hearing, none appeared on behalf of opposite party no.2. However, Smt. Indu Bala Pandey, learned Additional Public Prosecutor appeared on behalf of the State and she opposed the prayer of the petitioner. 8. After hearing the parties and examining the materials available on record, the court is prima facie satisfied that the contents mentioned in the complaint petition does not disclose commission of offences, rather it appears that the dispute in between the parties is purely civil in nature. 8. After hearing the parties and examining the materials available on record, the court is prima facie satisfied that the contents mentioned in the complaint petition does not disclose commission of offences, rather it appears that the dispute in between the parties is purely civil in nature. Moreover, from the record, it is evident that the complainant has alleged that complainant had handed over shares to the petitioner in the year 1992 and as alleged by the complainant, Rs.3,49,100/- was outstanding. The complainant has not given plausible reason for filing the complaint in the year 1997. Of course, he had tried to explain some delay, but same is not convincing. Moreover, this petitioner himself had filed a complaint against the complainant vide Complaint Case No.74 of 1995 in the court of Chief Judicial Magistrate, Ranchi and it was alleged that the complainant had cheated him after receiving Rs.3,33,000/- for supply of machineries and Computer knowhow to the petitioner. It appears that there was a dispute of accountancy in between the parties and for such dispute allowing the criminal proceeding to proceed will certainly amount to allowing abuse of the process of the court. With a view to prevent the abuse of the process of the court, it is necessary to interfere with the impugned order. Moreover, fact remains that complaint petition was filed in the year 1997 for an alleged occurrence, which was initiated in the year 1992 and the matter remained pending before this Court for about 12 years and as such at this belated stage, it would not be appropriate to direct the petitioner to participate in the present proceeding before the court below. 9. Accordingly, the impugned order of cognizance i.e. order dated 28th June, 1997/ 1st July, 1997 passed by Shri Vimal Kumar, Judicial Magistrate, Patna is hereby set aside and the petition stands allowed.