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2022 DIGILAW 249 (JHR)

Anand Prakash Handa v. State of Jharkhand

2022-03-03

SANJAY KUMAR DWIVEDI

body2022
JUDGMENT : Heard Mr. Kalyan Roy, learned counsel appearing for the petitioner, Mr. Tarun Kumar, learned A.P.P. for the State and Mr. Dhirendra Kumar Deo, learned counsel appearing for the O.P. Nos. 2 to 4. 2. This petition has been filed for quashing the entire criminal proceedings as well as the FIR, in connection with Mandu (WB) P.S. Case No. 315 of 2016 corresponding to G.R. No. 1176 of 2016 for the offences under Sections 406, 420, 418 and 120-B of the Indian Penal Code, pending in the Court of learned A.C.J.M. Ramgarh. 3. The opposite parties have filed the complaint case being complaint case No. 352 of 2016 which has been referred to the concerned police station under Section 156(3) Cr.P.C. to register and investigate the case by the Chief Judicial Magistrate, Ramgarh. On the basis of said direction issued under Section 156(3) Cr.P.C., the police has registered the instant case alleging inter alia that the petitioner has cheated the complainants to insist Punjab National Bank for making illegal pressure on the complainant, for payment of loan of Rs.44,88,248.80 which the opposite parties are not liable to pay. It is alleged that the complainants retired partners of the company called as Ganpati Coke Company. It is stated that the petitioner is also one of the partner for said company who has formed new company i.e. M/s Ganpati Coke company, in which he and one other person is the partner. It is alleged that the complainant and the petitioner were carrying on business for manufacturing hard coke under the name and style of M/s Ganpati Coke Company. It is alleged that the said partnership firm came in existence on 27.10.2010 and all the partners held 25% share in the firm. It is further alleged that the partnership firm was dealing the business till 31.08.2015 thereafter the petitioner had requested that the complainants to retire from the firm and it is also assured that the complainants have no responsibility / liability of the old firm. It is stated that the petitioner wanted to run the firm by himself, on such assurance given by the petitioner the old firm was dissolved and the new firm constituted w.e.f. 01.09.2015. it is further stated that in the new firm the petitioner introduced another partner Suresh Prasad. The petitioner had 90% share in the said firm. It is stated that the petitioner wanted to run the firm by himself, on such assurance given by the petitioner the old firm was dissolved and the new firm constituted w.e.f. 01.09.2015. it is further stated that in the new firm the petitioner introduced another partner Suresh Prasad. The petitioner had 90% share in the said firm. It is stated that the old firm i.e. Ganpati Coke Company had taken loan Rs.44,88,248.80 but after the new firm was constituted the complainants have no liability to pay any kind of loan taken by the old firm. It is stated that on 26.05.2016 the complainant received a letter from the bank for payment of the loan amount. The complainant further alleged that since the petitioner has not liquidated the dues of the bank as such the bank has issued notice under Section 13(ii) of the SARFAESI Act. It is stated that the complainant made several representation to the bank intimating that since they have retired from the partnership firm, they are not liable to pay any due of the bank. It is as such alleged that at the instance of the petitioner, the bank put pressure on the complainant to pay the loan amount, hence according to the complainant, the petitioner is liable for the offence committed under Sections 406, 420, 418 and 120-B I.P.C. 4. Mr. Kalyan Roy, learned counsel appearing for the petitioner submits that this case is civil in nature, wherein criminal prosecution has been launched against the petitioner. He submits that the petitioner as well as the private opposite parties were the partners in the firm namely M/s Ganpati Coke Company and the said firm has taken loan from Punjab National Bank and the loan was declared NPA. He further submits that the matter went before the Debt Recovery Tribunal under the SARFAESI Act. He also submits that the complainant received a notice by the Debt Recovery Tribunal and thereafter this complaint was filed. He submits that the complaint is even not having the affidavit and the learned Magistrate without applying the mind, referred the matter to the police station under Section 156(3) Cr.P.C. 5. Mr. Dhirendra Kumar Deo, learned counsel appearing for the O.P. Nos. 2 to 4 submits that the O.P. Nos. 2 to 4 have unnecessarily been harassed by way of issuing notice and that’s why this complaint has been filed by the complainants. 6. Mr. Dhirendra Kumar Deo, learned counsel appearing for the O.P. Nos. 2 to 4 submits that the O.P. Nos. 2 to 4 have unnecessarily been harassed by way of issuing notice and that’s why this complaint has been filed by the complainants. 6. In view of such submissions of the parties, the Court has perused the entire materials, available on record. In the complaint itself, in para-3 thereof, it has been disclosed that the complainants are the retired partners of the dissolved partnership firm called Ganpati Coke Company. It has also been stated in para-5 that the complainants and the accused were carrying on the business for manufacturing and sale of hard coke and its derivatives by products under the name of M/s Ganpati Coke Company. In the entire complaint, there is no disclosure of any ingredients against the petitioner. In para-9 it has been admitted that the complainants received a letter from the bank for the payment of the aforesaid loan. It also transpires that this complaint has not been affidavited and the learned Magistrate in one line has referred the complaint under Section 156(3) Cr.P.C. before the concerned police station, which is not in accordance with law. The application of judicial mind for referring such matters is necessary. 7. It is well settled that for a civil wrong, a criminal case is not required to be launched. Summoning of an accused in a criminal case is a serious matter. Reference may be made to the case of “Pepsi Food Limited and Another vs. Special Judicial Magistrate & Others, reported in (1998) (5) SCC 749” wherein the Hon’ble Supreme Court in para-28 has observed as follows:- “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any f the accused.” 8. This is a case arising out of dissolution of partnership firm, which is civil in nature. There is no doubt that only FIR is challenged in this case, however, on going through the contents of the FIR, no case of criminality is made out and to allow to continue will amount to abuse of the process of Court. Reference may be made to the case of Indian Oil Corporation Vs. NEPC India Ltd. & Ors., reported in (2006) 6 SCC 736 , wherein the Hon’ble Supreme Court in para-13 held as follows:- “13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP [ 2000 (2) SCC 636 ], this Court observed : "It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 9. In view of above discussion, it is a fit case, in which, this Court can exercise its power under Section 482 Cr.P.C. Accordingly, the entire criminal proceedings as well as the FIR, in connection with Mandu (WB) P.S. Case No. 315 of 2016 corresponding to G.R. No. 1176 of 2016 for the offences under Sections 406, 420, 418 and 120-B of the Indian Penal Code, pending in the Court of learned A.C.J.M. Ramgarh, are hereby, quashed so far as the present petitioner is concerned. 10. This criminal miscellaneous petition is allowed and disposed of.