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2012 DIGILAW 62 (PAT)

Gyanendra Jha v. State of Bihar

2012-01-12

RAKESH KUMAR

body2012
JUDGMENT Rakesh Kumar, J.- Heard Shri Mahendra Thakur. learned counsel for the petitioner. Shri Mayanand Jha. learned Additional Public Prosecutor, who appears of behalf of the State and Shri Dipak Kumar Sinha, learned counsel appearing on behalf of opposite party No. 2/informant. 2. The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing of an order dated 17.11.2011 passed by the Judicial Magistrate, 1st Class. Patna in Pirbahore P.S. Case No. 48 of 2009/G.R. No. 878 of 2009. By the said order, the learned Magistrate has rejected the petition filed under Section 239 of the Cr PC on behalf of the petitioner as well as petition filed by some of the other co-accused. 3. Learned counsel for the petitioner submits that almost for the same allegation, two FIRs were lodged. First FIR i.e. Pirbahore P.S. Case No. 48 of 2009 was lodged on 19.2.2009 under Sections 406, 420 and 409 of the Indian Penal Code on the basis of written information submitted by the informant i.e. opposite party No. 2 against the petitioner and another. Subsequently, opposite party No. 2 filed a complaint case i.e. Complaint Case No. 1209(C) of 2009 in the Court of Chief Judicial Magistrate, which was subsequently registered as Pirbahore P.S. Case No. 216 of 2009 on 12.6.2009 for the offence under Sections 406, 420 and 34 of the Indian Penal Code against other accused persons. However, subsequently, by the order of the Court, both the FIRs were amalgamated and after investigation police submitted charge-sheet against the petitioner and other accused persons, who were made accused in subsequent FIR. Learned counsel for the petitioner submits that on perusal of the said FIR, it is evident that it is a dispute of purely civil in nature. It was further submitted that in the first FIR, it was indicated that petitioner had said on non-judicial stamp paper that he will return Rs. 30 lacs. i.e. defalcated amount to the informant. 4. Learned counsel for the petitioner has also drawn my attention to Annexure-4 i.e. an order dated 11.5.2011 passed in Cri. Misc. No. 25616 of 2010 whereby a Bench of this Court in respect pf other co-accused persons had directed the parties to file application for withdrawal of the said case. 30 lacs. i.e. defalcated amount to the informant. 4. Learned counsel for the petitioner has also drawn my attention to Annexure-4 i.e. an order dated 11.5.2011 passed in Cri. Misc. No. 25616 of 2010 whereby a Bench of this Court in respect pf other co-accused persons had directed the parties to file application for withdrawal of the said case. On the aforesaid ground, it has been submitted that the learned Magistrate, without applying mind, has rejected the petition for discharge tiled by the petitioner. Learned counsel for the petitioner has also argued that for the same amount a civil suit has already been filed vide Money Suit No. 80 of 2011 against the petitioner, father and the mother of the petitioner. 5. Learned counsel for the petitioner has relied on a judgment of this Court reported in 2008(3) BBCJ 275 . Broad Way Food Ltd. v. State of Bihar and it was argued that if the allegation is of civil nature and there is an agreement, in that event no criminal prosecution should be allowed. 6. I have also perused the materials available on record. On perusal of the FIR i.e. Pirbahore P.S. Case No. 48 of 2009, the Court is satisfied that there was specific allegation of commission of cognizable offence by the petitioner. So far as the plea of learned counsel for the petitioner that civil suit is pending, the Court is of the opinion that merely on the basis of pendency of civil suit no benefit can be given to the petitioner. The FIR for cognizable offence was lodged in the year 2009 and Money Suit has been filed in 2011. So far as order dated 11.5.2011 passed in Cr. Misc. No. 25616 of 2010 is concerned, it is evident that said order was passed not in the petition filed by the petitioner. But, other co-accused had filed petition, who had also filed petition for discharge. which has been rejected by the learned Magistrate by the common order i.e. impugned order dated 17.11.2011. 7. Misc. No. 25616 of 2010 is concerned, it is evident that said order was passed not in the petition filed by the petitioner. But, other co-accused had filed petition, who had also filed petition for discharge. which has been rejected by the learned Magistrate by the common order i.e. impugned order dated 17.11.2011. 7. So far as Broad Way Food Ltd. case (supra) is concerned, the Court is of the opinion that it is not in dispute that in civil matter the prosecution may not be allowed to proceed, but in the facts and circumstances of the present case, it is evident that petitioner had committed a cognizable office and as such no benefit can be given to the petitioner. 8. After going through the materials available on the record, I do not find any merit in the petition. The petition stands dismissed. 9. In view of the fact that FIR was lodged in the year 2009, it is desirable to direct the Court below to proceed with the case expeditiously so the trial may come to its logical end without any un-necessary delay. Petition dismissed.