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2012 DIGILAW 74 (PAT)

Bhuvneshwar Prasad Mandal v. State of Bihar

2012-01-13

RAJENDRA KUMAR MISHRA

body2012
ORDER The petitioner has approached this Court, under Section 482 of the Code of Criminal Procedure, to quash the order dated 22.8.2006 passed by the Sub Divisional Judicial Magistrate, Purnea, in C.A. No.912 of 2003, summoning the accused-petitioner, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 409 of the Indian Penal Code. 2. In brief, the case is that the opposite party no.2, Satya Narayan Singh, filed the complaint petition, numbered as C.A. No.912 of 2003 with the allegation that on 24.4.2003 he was in civil custody. In the morning of 24.4.2003, the accused-petitioner, Bhuvneshwar Mandal, demanded Rs.25,000/- from the wife of the opposite party no.2, on her approach, for the release of opposite party no.2. Thereafter, the wife of opposite party no.2, sent Rs.20,000/- through Santosh Kumar Jha, the worker of opposite party no.2, her son, Raj Kumar Singh, Surya Narayan Choudhary and Nandan Choudhary, which was handed over to the accused-petitioner by the aforesaid Santosh Kumar Jha. It is alleged that the accused-petitioner committed the criminal offence by misappropriating Rs.12,500/- out of the delivered amount of Rs.20,000/- as only the receipt of Rs.7500/- was granted after the lapse of a week. The further case of the opposite party no.2 is that he had informed the aforesaid fact to the Chief Judicial Magistrate, Purnea, on 28.5.2003 vide R.L. No.1529 dated 28.5.2003 through courier and on 21.6.2003. After filing of the complaint petition by the opposite party no.2, the Sub Divisional Judicial Magistrate, Purnea, on inquiry under Section 202 of the Code of Criminal Procedure, summoned the accused-petitioner finding prima facie case under Section 409 of the Indian Penal Code through the impugned order dated 22.8.2006. 3. Learned counsel appearing on behalf of the petitioner made submission that the petitioner at the relevant time was Managing Director of Purnea District Central Cooperative Bank Limited, Purnea and was also a Certificate Officer. It has also been submitted that certificate proceeding bearing Certificate Case No.13 of 2002 was initiated against the opposite party no.2 vide order dated 28.9.2002 and a notice under Section 7 of the Bihar and Orissa Public demand Recovery Act was issued to him but in spite of service of notice, the opposite party no.2 did not file any objection. It has also been submitted that certificate proceeding bearing Certificate Case No.13 of 2002 was initiated against the opposite party no.2 vide order dated 28.9.2002 and a notice under Section 7 of the Bihar and Orissa Public demand Recovery Act was issued to him but in spite of service of notice, the opposite party no.2 did not file any objection. Subsequently, vide order dated 24.12.2002 distress warrant was issued to the opposite party no.2 and, thereafter, on the application of the Executing Officer, bailable warrant was issued to him vide order dated 21.1.2003. Thereafter, opposite party no.2 was arrested by the Executing Officer and produced before the petitioner on 17.3.2003. Since no amount was deposited by the opposite party no.2 towards the payment of the certificated amount, hence, opposite party no.2 was sent to civil prison vide order dated 17.3.2003. Thereafter, on 5.4.2003, the counsel for the opposite party no.2 appeared in the court of the petitioner and prayed for payment of the certificated amount through installment. Accordingly, the order was passed for payment of Rs.50,000/- with the guarantee and furnishing indemnity bond of two persons but later on, on 24.4.2003, an application was received on behalf of the opposite party no.2 for his release on the ground of illness and amount of Rs.7000/- towards payment of dues and Rs.500/- as conveyance charge were deposited in the Bank on his behalf vide Challan nos.3 and 4 dated 24.4.2003 and the indemnity bond of two persons with assurance to deposit the rest amount on releasing of the opposite party no.2 from the jail were furnished. Accordingly, the opposite party no.2 was released. The opposite party no.2 with oblique motive and to put undue pressure on the petitioner has filed this complaint case with false allegation as a counter blast to the aforesaid certificate case, so that further recovery case may not be proceeded. It has further been submitted that while it is alleged in the complaint petition filed on 12.8.2003 before the Chief Judicial Magistrate, Purnea, that regarding the misappropriation of Rs.12,500/-, the opposite party no.2 had informed the Chief Judicial Magistrate, Purnea, on 28.5.2003 vide R.L. No.1529 dated 28.5.2003 and on 21.6.2003, but it is very surprisingly enough that just before one day of the filing of the complaint petition, i.e., 11.8.2003, the opposite party no.2 had filed a writ petition bearing C.W.J.C. No.10565 of 2003 (Satya Narain Singh Vs. the State of Bihar and others) before this Court against the order dated 4.8.2003 passed by the petitioner in Certificate Case No.13 of 2002, in which the certificate proceeding was stayed and, subsequently, the aforesaid writ petition was withdrawn by the opposite party no.2 on 14.10.2003 but nothing had been alleged about misappropriation of Rs.25,000/- by the petitioner in the aforesaid writ petition, which is itself suffice to show the filing of the complaint petition by the opposite party no.2 with oblique motive, so that the amount as due against him could not be recovered from the bank. It is also submitted that Rs.7000/- and Rs.500/- on behalf of the opposite party no.2 were deposited by one Santosh Kumar, which would appear from Annexure-‘5’ series to this application, which is indicative of the fact that the money was not handed over to the petitioner. 4. On the other hand, learned counsel for the opposite party no.2 made submission that the Sub Divisional Judicial Magistrate, Purnea, has rightly summoned the petitioner, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 409 of the Indian Penal Code. It has also been submitted that the certificate proceeding is totally false and against the law and the same has been quashed by this Court, which would appear from Annexure-‘A’ to the reply filed on behalf of the opposite party no.2 to the rejoinder filed on behalf of the petitioner. 5. The allegation as made in the complaint petition against the petitioner is of misappropriation of Rs.12,500/-, out of Rs.20,000/-, as handed over on 24.4.2003 by the wife of opposite party no.2 to him through Santosh Kumar, as only receipt of Rs.7500/- was granted later on. While the counter affidavit and reply to the rejoinder filed on behalf of the petitioner have been filed on behalf of opposite party no.2 but initiation of the certificate proceeding by the petitioner being the Certificate Officer, who was Managing Director of the Purnea District Central Cooperative Bank Limited at the relevant time, is not disputed. While the counter affidavit and reply to the rejoinder filed on behalf of the petitioner have been filed on behalf of opposite party no.2 but initiation of the certificate proceeding by the petitioner being the Certificate Officer, who was Managing Director of the Purnea District Central Cooperative Bank Limited at the relevant time, is not disputed. It appears from the order dated 24.4.2003 of the order-sheets of the Certificate Proceeding, which is Annexure-‘6’ to this application that on that date an application was received on behalf of the opposite party no.2 regarding release of opposite party no.2 on the ground of his ill health and for treatment depositing of Rs.7000/- against loan amount and Rs.500/- as vehicle expenses with assurance to deposit the rest amount in installments on release from the civil prison. Accordingly, the order was passed to release the opposite party no.2 on furnishing of indemnity bond of two persons for payment of rest amount. It appears from the order dated 30.9.2003 of the order-sheets of the Certificate Proceeding, which is Annexure-‘6’ that after receiving the information regarding the filing of C.W.J.C. No.7417 of 2003 on behalf of the opposite party no.2 in this Court and to stay the proceeding, the proceeding was stayed by the petitioner, who was Certificate Officer, till the final decision of the writ petition. It also appears from Annexure-‘5’ series to this application that Rs.7000/- and Rs.500/- were deposited by one Santosh Kumar, who is none else but it appears from Annexure-‘6’ to this application that he was an Advocate and was doing pairvi in the Certificate Proceeding on behalf of the opposite party no.2. 6. Under the aforesaid facts and circumstances, it appears that the complaint case has been filed by the opposite party no.2 maliciously and with ulterior motive in counter blast to the certificate proceeding initiated by the petitioner, who is none but the Certificate Officer of the Certificate Proceeding, against the opposite party no.2 regarding the recovery of the loan as taken by him from the bank. As such, the impugned order dated 22.8.2006 passed by the Sub Divisional Judicial Magistrate, Purnea, in C.A. No.912 of 2003, summoning the petitioner finding prima facie case under Section 409 of the Indian Penal Code, appears to be an abuse of the process of the court and the same is hereby quashed. 7. In the result, this application is allowed. ?