Nawal Kishore Choudhary & Ors. v. The State Of B

For the petitioners : Mr.Surendra Kumar Singh, and Smt. Sudha Singh, Advocates For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Sri B.N.P. Singh, Advocate ----------- The three persons, impleaded as accused in Complaint Case no.22 of 2005, have prayed for the quashing of the order dated 25.5.2007 passed therein by Sri Sandip Mishra, Judicial Magistrate, 1st Class, Hajipur, whereby he has taken cognizance against the petitioners for offences punishable under Sections 341, 323,594 I.P.C. One Ram Narayan Rai , impleaded herein as Opp.Party no.2, filed the aforesaid complaint on 4.1.2005 inter alia alleging that when he went to the Dayalpur Branch of the Vaishali Kshetriya Gramin Bank at about 1.00 P.M. on 27.12.2004 to inquire from the Branch Manager regarding loan to farmers, the Branch Manager directed him to talk to the Cashier and when he went to talk to the Cashier, he was asked by the Cashier to talk to the Orderly Peon and the Cashier and Orderly Peon - 2 - informed him about necessity regarding depositing of documents of land for securing loan to farmers and that on loan being sanctioned , 15 % of the loan amount would have to be paid by way of commission to the Branch Manager as advance and only thereafter the amount would be handed over. It is said that on hearing this, the complainant again approached the Branch Manager and narrated to him the details given by the Cashier and also stated that he had even on earlier occasion taken loan from the Branch of the bank but never had any conditions like the present one been put to him. He also told the Branch Manager of having liquidated all his earlier loans. It is alleged that on such protest being raised by the complainant, all the three accused, namely, Branch Manager, Cashier and the Peon started abusing the complainant, assaulted him and thereafter pushed him out of the bank premises and the Bank Manager even threatened him that the complainant may take any steps, but no one could be able to cause any harm to him. The Bank Manager is also said to have given out that he being of the scheduled caste he had approaches in higher circles. The submission advanced by the learned counsel for the petitioners is that they are absolutely innocent and had been falsely implicated in this case. It was sought to be submitted that the complainant was a loanee of the Dayalpur Branch of the bank and had become a defaulter towards loan of Rs.3000/- taken by him in the year,1996 which would be apparent from the application of the complainant submitted to the bank and the submission is sought to be buttressed by appending a copy of the said loan application as Annexure-1 to the application. It was further - 3 - submitted that since the dues were continuing for a long period, the petitioners were goading the complainant to deposit the dues from 1986 to 1993 but he had deposited only Rs.1000/- and as on 13.9.1993 , a total dues of Rs.3652/- was outstanding against him which would be apparent from the statement of account appended as Annexure-2 to the application. It is further submitted that from 1993 to 2002, the complainant did not deposit any amount in the loan account, for which higher officials of the bank had been to the complainant to persuade him and on one occasion, he was even arrested and brought to the Block Head Office where he had paid Rs.1600/- on 14.2.2002 . It was also submitted that since it was an agricultural loan and the complainant for one reason or the other could not make the payment for a long time, for almost 16-17 years , the interest accrued against the loan of the complainant was waved and only outstanding dues up to 30.9.1993 was accepted by the bank by way of full and final settlement which was deposited by the complainant on

14.2.2002 and 2.9.2003 after great deal of pressure and persuasion by the petitioners and other employees of the bank as well as the staff of the Circle Office. It has further been submitted that after closure of account and settlement of loan, the complainant kept demanding return of his papers which as per his claim had not been handed over to him, notwithstanding the fact that the bank had returned all his documents and no documents whatsoever of the complainant was lying in the bank. Information in this regard was finally given to him on 21.12.2004. It is submitted that it was only after due deliberation and consultation that the complainant had filed - 4 - the said complaint petition with regard to an occurrence said to have taken place on 27.12.2004 on concocted grounds. The further submission on behalf of the petitioners is that the complainant again approached the bank for sanction of a loan of Rs.25, 000/- which was categorically refused by the bank in view of the earlier conduct of the complainant. Referring to the statements of the complainant on S.A. it was sought to be submitted that contrary to the allegations made in the complaint petition, the complainant had conveniently avoided the assault portion of the story and has merely stated that the petitioners had abused him and ousted him from the bank premises . It was also sought to be pointed out that although the occurrence is said to have taken place within the bank premises , yet there is no indication to show that the witnesses were present inside the bank, and as such, the falsity of the case becomes evident. My attention has also been drawn to the statements of the witnesses of the complainant , none of which are available on record to show that the witnesses had supported the complainant’s case fully. Finally, it was submitted that two of the witnesses , namely, Bushan Rai and Raghunath Rai had sworn affidavits that they had no knowledge about the case and incident and witness Bhagera Rai gave an affidavit to the effect that no such occurrence had taken place in the bank nor had any information about them. Opposing the submissions advanced by the learned counsel for the petitioners, the learned counsel for Opp.Party no.2 sought to submit that a clear case of the offences whereunder cognizance has been taken had been made out against the petitioners from the statements of the witnesses - 5 - and the statement of the complainant on S.A. It was also sought to be submitted that the learned Magistrate had rightly considered and formed an opinion only on the basis of the materials available before him, which had come forth in course of enquiry. Admittedly, the submission advanced by the learned counsel for the petitioners happens to be their defence which could not be looked into by the learned Magistrate while taking cognizance. What the other witness stated in course of their deposition in the enquiry is not available before this Court as the same has neither been appended to the application nor has been placed in course of hearing of the case. At the stage of taking of cognizance in a case arising out of a complaint petition, the court is only required to be satisfied that the materials laid before him prima facie show commission of offence. At this stage, defence of the case like frivolous, collusive complaint, alibi and want of sanction cannot be gone into. In view of the discussions made above, I find no merit in this application, which is accordingly dismissed. The petitioners shall be at liberty to raise all these issues, which are in fact their defence, at the time of framing of charge. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 11th May,2009 Nawal Kishore Singh/A.F.R.