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2014 DIGILAW 197 (PAT)

Ramashish Prasad Sharma v. State of Bihar

2014-02-07

RAKESH KUMAR

body2014
ORDER Heard Sri Ramakant Sharma, learned Senior Counsel, who was assisted by Sri Brajnandan Singh, learned counsel for the petitioners, learned Addl. Public Prosecutor as well as Sri Sunil Srivastava, learned counsel appearing on behalf of Opp.Party no.2. 2. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 26.08.2002 passed by the learned Judicial Magistrate, 1st Class, Patna in Complaint Case No.1467 (C) of 2001. By the said order, the learned Magistrate has taken cognizance of offence under Section 379 of the Indian Penal Code. 3. Short fact of the case is that the complainant/Opp.Party no.2 filed a complaint in the court of the learned Chief Judicial Magistrate, Patna alleging therein that the complainant had taken loan of Rs.75,000/- from Bihar State Co-operative Land Development Bank Ltd., Masaurhi Branch and out of the said amount Rs.35,000/- was paid directly to the supplier of Generator and the remaining amount was received by him. Since there was defect in the Generator, the complainant was facing difficulty. Although several requests were made by the complainant but the Generator set was not changed even after giving assurance in writing. However, on false pretext, five accused persons of complaint petition, which includes two petitioners, took the complainant to the office premises, where it was alleged that accused persons forcibly took Rs.340/- from the pocket of the complainant and also the complainant on false pretext was sent to civil prison. 4. Learned counsel for the petitioners submits that petitioner no.1 was the Branch Manager, Bihar State Co-operative Land Development Bank Ltd. and similarly, petitioner no.2 was an Assistant in the said Bank. It has been stated that since the complainant was not repaying the loan amount, steps were taken for recovery of the loan amount and finally, Certificate Proceeding was initiated, in which warrant of arrest was prepared against the complainant and in execution of warrant of arrest, the complainant was apprehended and sent to civil prison. After he was released from civil prison, maliciously the present complaint was filed by the complainant falsely and the learned Magistrate in a mechanical manner after enquiry has passed the impugned order. After he was released from civil prison, maliciously the present complaint was filed by the complainant falsely and the learned Magistrate in a mechanical manner after enquiry has passed the impugned order. Learned counsel for the petitioners relying on an order dated 30.10.2007 passed by a Bench of this Court in Cr.Misc.No.18663 of 2007 has argued that since the prosecution itself was malicious, this Court has set aside the order of cognizance in respect of one of the co-accused, namely, Pramod Kumar. He submits that since a Bench of this Court in a case of one of the co-accused has found the allegation in the complaint petition as false and set aside the order of cognizance, similar treatment is required to be given to the petitioners. 5. Learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners. He submits that whatever argument has been advanced by learned counsel for the petitioners, same can be examined by the court below at the appropriate stage and not at the stage of cognizance. He submits that at the time of cognizance whatever material was produced before the learned Magistrate, on the basis of enquiry the learned Magistrate has passed right and correct order, which is not required to be interfered with. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. It is not in dispute that the complainant had taken loan from the Bank. It has also not been disputed that certificate proceeding was initiated against the complainant. The accusation made by the complainant has already been examined by a Bench of this Court in Cr.Misc.No.18663 of 2007 and thereafter, order of cognizance was set aside. The said order has been brought on record as Annexure-2 to the present petition, which is self-explanatory. On perusal of order dated 30.10.2007 passed in Cr.Misc.No.18663 of 2007, the Court is of the opinion that no different opinion can be arrived in the present case. 7. Accordingly, the order of cognizance dated 26.08.2002 passed in Complaint Case no.1467 (C) of 2001 is hereby set aside and the petition stands allowed. ?