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2012 DIGILAW 123 (PAT)

Shashi Goenka v. State of Bihar

2012-01-20

ADITYA KUMAR TRIVEDI

body2012
ORAL JUDGMENT Per Aditya Kumar Trivedi, J.-Petitioner has prayed for quashing of order dated 09-12-2009 passed by Chief Judicial Magistrate, Bhagalpur in Complaint Case No. 2370 of 2002, Narayan Prasad Goenka v. Amarnath Goenka & Anr., whereby and whereunder she along with others has been summoned to face trial for an offence punishable under Sections 406 and 420 of the IPC. 2. O.P. No.2 filed complaint petition before the learned Chief Judicial Magistrate alleging inter alia that he is son of late Chhedi Lal Goenka but he was taken in adoption by Late Laxmi Narayan Goenka, uncle of Late Chhedi Lal Goenka and accordingly he became entitled for half share in place of Late Laxmi Narayan Goenka, his adoptive father in the joint business being carried out by joint family of Late Chhedi Lal Goenka and Late Laxmi Narayan Goenka. It had further been disclosed that Late Chhedi Lal Goenka died leaving behind four sons Amarnath Goenka, Narayan Prasad Goenka (complainant), Vishnu Prasad, Krishna Kumar Goenka and two daughters, Shayma Agrawal, Parwati Kejriwal and widow Bimla Devi Goenka. Amarnath Goenka was entrusted to look after partnership firm "Style". Complainant as well as Smt. Bimla Devi was partners and it was established in the year 1986. It had further been averred that without his knowledge, Late Chhedi Lal Goenka had partitioned the property amongst family members. In the aforesaid background, the accused persons in conspiracy to each other got the document prepared in their name relating to firm "Style" though in the Sale Tax Department as well as Income Tax Department, it continued with "Style" firm. No share was deducted in favour of complainant as well as Bimla Devi. The aforesaid event was known to him when he came on death of Late Chhedi Prasad Goenka on 19-12-2008. Thereafter, the other partners have executed power of attorney in his favour. In the aforesaid background he had served upon an advocate notice on 08-01-2009 as well as 10-01-2009 upon accused but accused No.1 instead of complying with the directions, filed Sanha and that shows the criminal intention of accused in getting the share of complainant misappropriated by means of creating forged and fabricated document. In the aforesaid background he had served upon an advocate notice on 08-01-2009 as well as 10-01-2009 upon accused but accused No.1 instead of complying with the directions, filed Sanha and that shows the criminal intention of accused in getting the share of complainant misappropriated by means of creating forged and fabricated document. On the basis thereof, the learned Chief Judicial Magistrate proceeded to conduct an inquiry under Section 202 of the Cr.P.C. whereupon witnesses were examined and then by the order impugned summoned the petitioner including others resulting filing of instant petition. 3. At an earlier occasion, it was argued on behalf of petitioner that learned Chief Judicial Magistrate has acted in haphazard manner for some extraneous consideration on account of which vide order dated 17-02-2010 a report was called for from the District and Sessions Judge which is available on the record. From perusal of the said report it is evident that only three cases that means to say Complaint Case No. 2331 of 2009, 933/2009 and the present one 2370 of 2009 was taken up on priority basis by the Court concerned and more particularly, instant complaint has been swifted in hurry only consuming three dates from the date of institution of order impugned. 4. Contention on behalf of petitioner is that whatever allegation has been made in the complaint petition, all are palpably false and frivolous and the same never existed in its true sense. To support her plea, by way of supplementary affidavit filed Anexure-4 advocate notice dated 08-01-2008 and 4/A advocate notice dated 10-01-2009 served upon Amarnath Goenka, accused No.1 on behalf of complainant wherein there is total absence of such kind of allegation whatever been alleged in the complaint petition. It has further been disclosed that from the advocate notice dated 10-01-2009, the complainant had himself admitted 1/6th share of the Amarnath Goenka, husband of petitioner in the property and the firm "Style" and further no allegation has been put against the petitioner in any manner so, the subsequent filing of complaint petition arraying petitioner as one of the accused is nothing but an outcome of malicious prosecution. Then submitted that even going through the complaint petition, it is evident that no allegation has been attributed against the petitioner save and except having her presence in the column of accused. Then submitted that even going through the complaint petition, it is evident that no allegation has been attributed against the petitioner save and except having her presence in the column of accused. Further submitted that during course of inquiry, also more particularly the complainant on S.A. failed to put any sort of allegation against the petitioner. Therefore, continuance of proceeding against the petitioner will be nothing but an abuse of the process of the Court. 5. At the other hand, the learned lawyer for O.P. No.2 has submitted that at the stage of summoning the accused, only prima facie material has to be seen. The satisfaction of the Magistrate at this score happens to be beyond the scrutiny of Hon’ble Court more particularly at the stage of Section 482 of the Cr.P.C. Then submitted that at this stage the Magistrate is not at all required to evaluate the evidence in such way as prescribed for scrutiny during trial. If no evidence will be available, petitioner will get acquittal but on that very score, her prayer in present manner is fit to be rejected. 6. The learned A.P.P. endorsed the plea raised on behalf of O.P. No.2 and submitted that once a prima facie case has been traced out against the petitioner, the same cannot be nullified. 7. From the complaint petition admittedly no allegation has been leveled against the petitioner save and except incorporating the fact that all the documents were fabricated by accused No. 1 at the instance of his wife and that happens to be the only basis for arraying her as an accused. When the S.A. of the complainant has been gone through, surprisingly the complainant did not even whisper to that extent against the petitioner. That means to say neither direct nor circumstantial evidence is available against the petitioner to justify her prosecution. There happens to be disclosure of serving of two advocate notice dated 08-01-2009 as well as 10-01-2009. Those advocate notice have been placed by Annexure-4 and 4/A of supplementary affidavit. After going through the same again no allegation is traced out against the petitioner. 8. In a decision reported in AIR 1992 SC 604 , State of Haryana & Ors. There happens to be disclosure of serving of two advocate notice dated 08-01-2009 as well as 10-01-2009. Those advocate notice have been placed by Annexure-4 and 4/A of supplementary affidavit. After going through the same again no allegation is traced out against the petitioner. 8. In a decision reported in AIR 1992 SC 604 , State of Haryana & Ors. v. Bhajan Lal & Ors., the following criterias have been identified where under jurisdiction of superior Court under Section 482 of the Cr.P.C. can be invoked and those are : “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the, proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 9. In another decision reported in (2009) 1 SCC 516, R. Kalyani v. Janak C. Mehta, at para 16 it has been held : “It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” 10. In another decision reported in 2010(11) SCC 226 it has been held : “18. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the Trial Judge/Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.” “19. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.” “19. Though the High Court may exercise its power relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or allegations in the FIR do not disclose a cognizance offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in.” “20. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires case/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section 482.” 11. Thus, taking into account the averments of compliant, S.A. as well as statements of the witness inconsonance with the principal enunciated by the Hon'ble Apex Court, it is evident that it is a fit case wherein prayer of the petitioner should be acceded with. Consequent thereupon order dated 09-12-2009 passed by the learned Chief Judicial Magistrate to the extent of summoning the petitioner is quashed. Thus, petition is allowed. Petition allowed.