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2012 DIGILAW 1421 (PAT)

Ashok Kumar Ray v. State Of Bihar

2012-10-05

RAKESH KUMAR

body2012
ORDER 1. Heard Sri Gopal Govind Mishra, learned counsel for the petitioner, learned Addl. Public Prosecutor as well as Sri Pranab Kumar learned counsel, who has appeared on behalf of the informant/Opp.Party no.2 on instruction of Sri Anant Kumar, learned counsel for Opp.Party no.2. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 31.08.2010 passed by the learned Chief Judicial Magistrate, Katihar in Katihar P.S.Case No.142 of 2009. By the said order, the learned Magistrate has taken cognizance of offence 406,420, 379 and 506 of the Indian Penal Code. 3. Short fact of the case is that Opp.Party no.2 initially filed a complaint in the court of the learned Chief Judicial Magistrate, Katihar, which was subsequently referred to the police under Section 156(3) of the Code of Criminal Procedure for its registration and investigation of the case and thereafter, an F.I.R. vide Katihar Town P.S. Case No.142 of 2009 was registered for the offence under Sections 406,420,379 and 506 of the Indian Penal Code. The case was investigated and after collecting the evidence corroborating the commission of alleged offences, chargesheet was submitted by the police. The learned Magistrate by the impugned order has taken cognizance of offence, as mentioned above. In sum and substance, it was alleged by the informant in the F.I.R. that the petitioner was a petty contractor and he had taken works order from the Minor Irrigation Department. Thereafter, the petitioner entered into an agreement with the informant and one another. As per agreement, the work was to be executed by the informant and one another person and they were also required to meet the expenses for total amount of Rs.42,35,508/-. As per internal agreement , the petitioner was required to make payment after receiving the payment from the Government. It was alleged that after completion of 70 % works, certain payments were made through cheque, which was received by the petitioner, but fraudulently only some amount was paid and some amount was not paid to the informant. It was alleged that in a calculated manner, the petitioner had persuaded the informant for executing the work and after receipt of payment from the government, money was not paid to the informant. It was alleged that in a calculated manner, the petitioner had persuaded the informant for executing the work and after receipt of payment from the government, money was not paid to the informant. It has also been disclosed that when the informant started demanding money, the petitioner with hired criminals had committed another offences and Rs.25,000/- was forcibly taken from the informant by pointing revolver by the accused persons. During investigation, the allegation in respect of fraud as well as commission of offence under Sections 379 and 506 of the Indian Penal Code was also found true and chargesheet was submitted and thereafter the learned Magistrate has passed order of cognizance. 4. Sri Gopal Govind Mishra, learned counsel for the petitioner, while assailing the impugned order, submits that once there was an agreement in between the petitioner and the informant, there was no question for initiating criminal prosecution. He submits that it was a purely civil dispute and the informant in a civil dispute has given criminal colour and criminal case was instituted. He further submits that the petitioner has already paid Rs.14 Lacs to the informant. On the second part of accusation, it was argued that the allegation of commission of offence under Sections 379 and 506 of the Indian Penal Code was only an ornamental and, as such, the learned Magistrate was not required to proceed with the case. In support of his argument that in a civil dispute , criminal prosecution cannot be initiated , the learned counsel for the petitioner has relied on Judgments reported in (i) 2009(3) PLJR 1061 ; Deepak Jain Vs. State of Bihar & Ors. (ii) AIR 2006 SC 2780 ; M/S Indian Oil Corporation Vs. N.E.P.C. & Ors. , and (iii) AIR 2008 SC 251 : Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. He submits that time without number it has been reiterated by this Court as well as the Apex Court that in civil dispute, criminal prosecution may not be allowed to proceed. On the aforesaid grounds, learned counsel for the petitioner has prayed for setting aside the order of cognizance. 5. Sri Pranab Kumar, learned counsel, who has appeared on behalf of Opp.Party no.2 and the learned Addl. Public Prosecutor have vehemently opposed the prayer of the petitioner. On the aforesaid grounds, learned counsel for the petitioner has prayed for setting aside the order of cognizance. 5. Sri Pranab Kumar, learned counsel, who has appeared on behalf of Opp.Party no.2 and the learned Addl. Public Prosecutor have vehemently opposed the prayer of the petitioner. Sri Pranab Kumar, learned counsel appearing on behalf of the informant refuted the submission made by learned counsel for the petitioner, particularly on the point that even in a case, where there is apparently civil dispute, criminal case can be initiated if there is some ingredients to show commission of criminal offence. He submits that the material available on record shows that the informant was cheated by the petitioner. He further submits that the offence under Sections 379 and 506 of the Indian Penal Code is specifically clear from perusal of the F.I.R. itself, which was corroborated during investigation and, as such, chargesheet has rightly been submitted. In support of his argument that even in such situation, where civil and criminal liability is there, criminal proceeding can be initiated, learned counsel for Opp.Party no.2 has relied on Judgments reported in (i) (1999)8 SCC 686 ; Trisuns Chemical Industry Vs. Rajesh Agrawal & Ors. and (ii) (2001)3 SCC 513 ; Alpic Finance Ltd. Vs. P. Sadasivan & Anr. Accordingly, he submits that for coming to a definite conclusion as to whether it was a case of criminal offence or civil dispute, the fact of each case is to be examined independently. He submits that the allegation made in the F.I.R., which has been found true during investigation, categorically suggests commission of offences, for which cognizance order has been passed. 6. Besides hearing the parties, I have also perused the materials available on record. It is true that in the F.I.R. it was asserted that there was an agreement in between the petitioner and the informant. Fact remains that the assertion made in the F.I.R primarily suggests commission of criminal offence. Moreover, the allegation made in the F.I.R. was thoroughly investigated and during investigation, the allegation was found true and thereafter, chargesheet was submitted. At the stage of cognizance, only requirement is to see as to whether prima facie case is made out or not. Fact remains that the assertion made in the F.I.R primarily suggests commission of criminal offence. Moreover, the allegation made in the F.I.R. was thoroughly investigated and during investigation, the allegation was found true and thereafter, chargesheet was submitted. At the stage of cognizance, only requirement is to see as to whether prima facie case is made out or not. So far the allegation of offence under Sections 406 and 420 of the Indian Penal Code are concerned, at this juncture, it would not be appropriate for this Court to record any definite finding, but the facts on record are sufficient to refrain this Court from interfering with the order of cognizance. Regarding allegation of commission of offence under Sections 379 and 506 of the Indian Penal Code, the complaint petition makes specific averments and, as such, in view of the facts and circumstances of the present case, the Court is of the opinion that the learned Magistrate, while passing the impugned order, has committed no error. The impugned order requires no interference. Time without number, it has been reiterated that power under Section 482 of the Code Criminal Procedure at the initial stage in a case is required to be exercised in exceptional and rarest of rare cases. I do not find that the present case can be put in the category of exceptional cases warranting interfere by exercising power under Section 482 of the Code of Criminal Procedure. 7. The petition stands dismissed.