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2015 DIGILAW 182 (JHR)

Shiv Kumar Choudhary v. State of Jharkhand

2015-02-05

RONGON MUKHOPADHYAY

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JUDGMENT :- Rongon Mukhopadhyay, J. Heard Mr. B. K. Jha, learned counsel appearing on behalf of the petitioner and Mr. Prabir Kumar Chatterjee, learned counsel for the opposite party No. 2. No one appears on behalf of the State. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with C.P. Case No. 1406 of 2010 including the order dated 11.05.2011 passed by the learned Judicial Magistrate, Dhanbad, whereby and whereunder, cognizance has been taken for the offence punishable u/s 323/ 341/ 406/ 504 of the Indian Penal Code (IPC). 3. It appears that a complaint case had been instituted by the complainant/ opposite party No. 2 in which it was stated that the petitioner is the elder brother of the complainant and both of them resides in the same building along with family members. It has been alleged that the petitioner who does business of sweets, demanded Rs. 40,000/-from the complainant and the complainant on the assurance that the petitioner will return the same very shortly, managed to procure the said sum of Rs. 40,000/-and gave the same to the petitioner. It has been further alleged that when even after lapse of one year the said sum was not returned, the complainant along with two other persons demanded the money from the petitioner, but the petitioner used filthy language and refused to return the money. 4. After initiation of the complaint case, an enquiry was conducted u/s 202 of the Code of Criminal Procedure (Cr.P.C.) by examining the complainant on solemn affirmation as also his witnesses and pursuant thereto vide order dated 11.05.2011, the learned Judicial Magistrate, Dhanbad was pleased to take cognizance for the offence punishable u/s 323/ 341/ 406/ 504 of the Indian Penal Code (IPC). 5. The learned counsel for the petitioner has submitted that the petitioner is the elder brother of the complainant and there was a dispute with respect to the ancestral property for which a partition suit was instituted by the petitioner on 25.1.2010. He has further submitted that the present complaint case has been instituted only because of the fact that the complainant was asked by the petitioner and his family members to get the tenanted premises vacated for which the complainant had spent some amount and only to get refund of the said amount, this case been instituted with all sorts of false allegations. It has further been submitted that there is no criminal element present in the present case so as to prosecute the petitioner for the alleged offence. 6. The learned counsel for the opposite party No. 2 on the other hand has submitted that the petitioner has filed an application for discharge which was subsequently rejected on 2.8.2014 and the case is pending for framing of charge, but the petitioner is evading the Court and therefore the trial is getting delayed. The complaint itself reveals that the petitioner had taken Rs. 40,000/-, but the same was not returned to the complainant even after a lapse of one year. 7. After hearing the learned counsel for the parties and after going through the records, I find that the present complaint case has been instituted on 4.8.2010 with the allegation that on being asked by the petitioner, Rs. 40,000/-was arranged by the complainant/ opposite party No. 2 and the same was given to the petitioner, but the same was not returned even after a lapse of one year. It further appears that a title partition suit was filed against the complainant/ opposite party No. 2 on 25.1.2010 to which a written statement has already been filed by the complainant/ opposite party No. 2. 8. Learned counsel for the petitioner has drawn the attention of the Court towards Paragraph-9(f) and 9(h) of the written statement which is quoted hereunder:- "9(f) That, the plaintiffs have deliberately suppressed the most material fact related with property which is a crime in the eyes of law. It has been suppressed that the entire ground floor was in occupation of the different six unscrupulous tenants and the family was facing court's litigation with all of them, due to which, the family was facing economical problem and the plaintiff no. 1, defendant no. 1 and Late Usha Kumari executed a power of attorney in favour of the answering deft no. 2 but they were quite unable to pay the litigation cost to answering deft. in order to fight out the litigation. 9(h) That, it would be an admitted and undisputed fact that, the poor answering deft. spent not only his hard earned money in getting vacated the ground floor from the most troublesome tenants but also gave several years of his young hood in running to the court's and lawyer's office up to the year 1992. 9(h) That, it would be an admitted and undisputed fact that, the poor answering deft. spent not only his hard earned money in getting vacated the ground floor from the most troublesome tenants but also gave several years of his young hood in running to the court's and lawyer's office up to the year 1992. The answering defendant No. 2 is not only maintaining the house like repairing etc. but has also got constructed two rooms on the second floor out of which one room has been given to deft. no. 1 and another is in his personal use and occupation and thus, it is evident that the plaintiff is illegally stopped either from demanding partition or to whisper anything against the rent collected by answering deft. Hence the suit deserves to be dismissed." 9. From the averments made by the complainant/ opposite party No. 2 as quoted above, it appears that the dispute basically revolves around the ancestral property and since the complainant/ opposite party No. 2 admitted that sufficient amount of money had been spent by him in order to get the tenanted premises vacated by instituting legal proceedings, but the plaintiff No. 1 (petitioner) was unable to pay the litigation cost to the opposite party No. 2 in order to fight out the litigation. 10. It thus seems that the entire allegation in the complaint is connected with the dispute which is pending between both sides with respect to their ancestral property and if the complaint petition is considered in the backdrop of the partition suit, it appears that the criminal case has been instituted against the petitioner with a view to put pressure upon him on account of his not making any contribution towards litigation cost. In the circumstances, the criminal proceeding being a malicious prosecution deserves to be quashed and set aside. Accordingly, I find merit in this application. 11. In view of discussions made herein above, this application is allowed and the entire criminal proceeding in connection with C.P. Case No. 1406 of 2010 including the order dated 11.05.2011 passed by the learned Judicial Magistrate, Dhanbad, whereby cognizance has been taken for the offence punishable u/s 323/ 341/ 406/ 504 of the Indian Penal Code (IPC) is quashed.