Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 1018 of 2013 ====================================================== Ramchandra Pandey Son of Late Brij Vasi Pandey Resident of Village- Kanak Semariya, P.S.- Kochas, District- Rohtas (Sasaram), at present residing at Rajedra Vihar Colony, Newada, Sundarpur, Varanasi. 1. The State of Bihar 2. Dr. Rabindra Nath Tripathi Son of Late Ram Dayal Tripathi Resident of Prema Bhawan, Panjar Colony, Gorakshani, District- Rohtas (Sasaram). Versus .... .... Petitioner .... .... Opposite Parties ====================================================== Appearance : For the Petitioner : Mr. For the Opposite Parties : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 4. 25-09-2013 Heard learned counsel for the petitioner, learned A.P.P. for the State and learned counsel appearing for the opposite party no. 2. The application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) seeks quashing of order dated 30.08.2012 passed by the Chief Judicial Magistrate, Rohtas (Sasaram) in Complaint Case No. 45 of 2012, by which cognizance has been taken under Sections 406/420 of the Indian Penal Code. As per the complaint, the petitioner is said to have been a close acquaintance and had asked the complainant for some money in order to complete construction of his house at Varanasi. Accordingly, through various Bank Drafts Rs. 1,25,000/- was paid. Further in 2
Legal Reasoning
Patna High Court Cr.Misc. No.1018 of 2013 (4) dt.25-09-2013 2 / 5 December, 2002, Rs. 89,000/- was paid and later in the year 2004, Rs. 90,000/- was paid the total being Rs. 3,04,000/-. It is submitted that despite repeated reminders and also legal notice being sent on 02.12.2011, the petitioner did not return the money forcing the complainant to lodge the case. Learned counsel for the petitioner submits that in the year 2004, the son of the petitioner was married to the daughter of the complainant. It is thus, submitted that the complaint being file in the year 2012, without disclosing the fact that the parties are closely related by marriage and instead disclosing the relationship as acquaintance, the complainant has set rolling the criminal proceeding on the basis of a false representation. Learned counsel further submits that there is not even a whisper in the entire complaint with regard to the relationship of being in-laws. Coming to the merits of the case, learned counsel submits that from the plain reading of the complaint, it is obvious, that initially when the money is alleged to have been taken by the petitioner, there was cordial and good relationship between the parties and also there was trust between them. In that background, learned counsel for the petitioner submits that there cannot be any presumption with regard to there being any dishonest intention or criminal breach of trust. Learned counsel submits that there being allegation that in December, 2011 despite legal notice being sent, the 3 Patna High Court Cr.Misc. No.1018 of 2013 (4) dt.25-09-2013 3 / 5 petitioner failing to repay the amount taken by him, itself proves that there is actionable claim against the petitioner but the same is purely of civil nature for which the criminal case is an abuse of the process of the Court. Learned counsel submits that from the complaint itself, it transpires that the entire payments were made by the year 2004 but the first and only legal notice which is said to have been sent is in December, 2011 i.e., after more than 7 years of the payments being made. Thus, it is obvious that the reason behind lodging of the present case is not a simple case of the accused not returning money but there is more than meets the eye, especially in the background to the fact that the daughter of the complainant was married to the son of the petitioner in the year 2004 itself. Learned counsel has referred to and relied upon a decision of this Court in the case of Sanjay Suchanti v. State of Bihar reported in 2004 (4) PLJR 222 in which it has been held that mere failure to keep a promise by not returning the money taken as friendly loan, do not make out prima facie case under Sections 406 and 420 of the Indian Penal Code. Learned A.P.P. for the State submits that in the background of the relationship existing between the parties and also the nature of the complaint, the same clearly discloses a civil dispute. Learned counsel appearing for the opposite 4 Patna High Court Cr.Misc. No.1018 of 2013 (4) dt.25-09-2013 4 / 5 party no. 2, submits that the petitioner did have dishonest intention of not returning the money from the beginning and that is why even after repeated reminders and also legal notice being sent, the same was not returned, which has forced the complainant to file the case. Learned counsel further submits that from the admission on the part of the petitioner that his the son is married to the daughter of the complainant and the marriage took place in 2004, the obvious import of these transactions, which are either prior to or round about the period when the marriage had taken place, indicates that the petitioner had taken dowry for the marriage of his son, which fact this Court may take judicial notice of. Upon considering the facts and circumstances of the case and going through the materials on record, this
Legal Reasoning
Court finds substance in the submissions of learned counsel for the petitioner and learned A.P.P. for the State. The very vital fact of close relationship between the parties which had been established way back in the year 2004, not being mentioned in the complaint filed in the year 2012, and rather a statement made disclosing the relationship as only acquaintanceship, does indicate that the complaint has not been filed for a bona fide purpose. Moreover, from the entire complaint, it is obvious that certain amounts were given and for recovery of which, the remedy available to the complainant of filing money suit before the Civil Court of competent 5 Patna High Court Cr.Misc. No.1018 of 2013 (4) dt.25-09-2013 5 / 5 jurisdiction having been available and not availed of, the complaint case clearly would amount to abuse of the process of the Court. As far as the question of payments indicating transactions amounting to dowry between the parties, this Court would not like to go into an aspect which is not the subject matter of the present application. Accordingly, this Court in exercise of its inherent powers under Section 482 of the Code, quashes the Complaint Case No. 45 of 2012, as well as the order taking cognizance dated 30.08.2012. The application stands allowed. (Ahsanuddin Amanullah, J.) Anand Kr.