State Of Bihar v. Bandh

CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 7 21-10-2013 Heard learned counsel for the parties. The present application has been filed for quashing the entire criminal proceeding as well as order dated 18.11.2009 passed in Complaint case no. 340 C of 2009 whereby the learned Judicial Magistrate Ist Class, Khagaria took cognizance for the offence punishable under section 379 of the Indian Penal Code. It is alleged by the complainant that the complainant purchased tractor from Murari Machinery Store to which the petitioner is the proprietor, after getting it financed from Union Bank of India, Khagaria branch, but on 13.012009 the driver was ploughing the field with the tractor when 7-8 unknown persons along with Aurangjeb and Mahendra Singh took away the tractor. On enquiry they conveyed that the tractor has been seized at the behest of the bank since the complainant/O.P. No. 2 defaulted in repayment of the loan amount. Then complainant/O.P. no. 2 went Patna High Court Cr.Misc. No.38615 of 2010 (7) dt.21-10-2013 to the petitioner – tractor dealer firm where signature of O.P. No. 2 was taken on four –five papers. Subsequently in compliance of Lok Adalat order dated 24.1.2009, passed in Case no. 09 of 2009 in pursuance to compromise arrived at deposited Rs.40,000 but found several parts of the tractor missing. It is submitted by learned counsel for the petitioner that since the O.P. No. 2 defaulted in making payment of loan amount, the tractor was seized at behest of the bank when no payment was made in pursuance to the Lok Adalat order as a result the claim of the O.P. No. 2 was finally dismissed by the Lok Adalat. The tractor as auctioned and the bank calculated the loan amount till

31.1.2007 to the tune of Rs.4,29,000 against O.P. No. 2. It is submitted by the learned counsel for the O.P. No. 2 that Rs.40, 000 has been deposited in pursuance of the order of the Lok Adalat but since the parts of the tractor were missing, delivery of the tractor was not made to the O.P. No. 2. Considering the rival contentions of the parties, this court is of the view that offence of theft is only made out if someone dishonestly intends to take away any movable property out of the possession of any person without that person’s consent or moves that property in order to take away but in the present case, admittedly the tractor was seized at the behest of the bank Patna High Court Cr.Misc. No.38615 of 2010 (7) dt.21-10-2013 when the O.P. No. 2 made default in payment of the loan amount. Hence for a civil nature of a dispute, the criminal prosecution has been launched which has been deprecated by the Apex Court in the case of Indian Oil Corporation Vs. NEPC India Limited and ors. reported in (2006) 6 SCC 736, the relevant paragraph nos. 13 and 14 read as follows: Paragraph 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 through criminal prosecution should be deprecated and discouraged. "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. 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." Paragraph 14 – “While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made Patna High Court Cr.Misc. No.38615 of 2010 (7) dt.21-10-2013 taken by the courts, accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that to curb unnecessary can be prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.” Considering the present case on the touchstone of the ratio laid down by the Apex Court in the aforesaid case, this court comes to a conclusion that the offence under section 379 of the Indian Penal Code, prima facie, is not made out, particularly against the petitioner. Hence, it will not be in the interest of justice to allow the present prosecution to continue, as a result, the entire prosecution of complaint case no. 340 of 2009 including the order of cognizance dated 18.11.2009 are hereby quashed. This application is, accordingly, allowed. Anil/- (Dinesh Kumar Singh, J)