Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44752 of 2010 ====================================================== 1. Sk. Ramjan Ali son of Late Sk. Mofil Hussain 2. Ram Kumar Ravidas son of Late Muneshwar Ravidas .... .... Petitioner/s 1. The State Of Bihar 2. Rajesh Singh son of Ram Prakash Singh Versus .... .... Opposite Party/s ====================================================== Appearance : For the Petitioners/s : Sumant Singh, Adv For the O.P. No. 2 : Ajay Kumar, Adv For the State : J.N. Thakur, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 6 25-11-2013 Heard learned counsel for the parties. The present application has been filed for quashing of the order dated 25.03.2010, whereby learned Judicial Magistrate, 1st Class, Katihar has directed for issuance of process, after cognizance being taken for the offences punishable under Sections 420 of the I.P.C. The prosecution case, as per the complainant, being a Deputy Mukhiya of Gram Panchayat Raj, Nima is to the effect that petitioner No. 1 was elected as Mukhiya and petitioner No. 2 as Panchayat Sewak, of Gram Panchayat Nima in 2006, but they failed to convene the general meeting or the meeting of executive committee in spite of the repeated requests for which complaint was also made to the authorities. It is also alleged that the petitioners misappropriated the money with regard to Indira Awas Scheme 2
Facts
Patna High Court Cr.Misc. No.44752 of 2010 (6) dt.25-11-2013 2 / 7 and several other schemes. More over, the petitioners forcefully obtained the signature of the complainant’s witnesses, namely, Nasim Ansari, Bimal Saha and Shiv Narain Mandal, on a plain paper and thereby misappropriated the money of Indira Awas Scheme. It is submitted by learned counsel for the petitioners that the accusation is vague and absolutely not specific. The complainant made complaint before the District Magistrate, Sub-Divisional Officer and other officers also. The present police case was registered after complaint being transferred to the police under Section 156(3) of the Cr.P.C, but during investigation the accusation was found false and petitioners were not sent up for trial. The final form was submitted on 18.12.2008 vide Final Report No. 195 of 2008, as contained in Annexure-2, which was accepted on 22.04.2009, after hearing the informant and the prosecution. Thereafter, protest petition was filed on 04.06.2008 which was treated as complaint, when the complainant as well as Sunil Kumar Singh, Rajiv Ranjan Kushwaha and Chandrabhushan Thakur were examined as enquiry witnesses under Section 202 of the Cr. P.C but neither the complainant nor the enquiry witnesses alleged anything specific against the petitioners nor all the three witnesses claimed to be associated with the Panchayat body. Moreover, the three witnesses, initially named in the complaint petition, namely, Nasim Ansari, Bimal Saha and Shiv 3 Patna High Court Cr.Misc. No.44752 of 2010 (6) dt.25-11-2013 3 / 7 Narain Mandal, were not examined, whose money was allegedly misappropriated under Indira Aawas scheme. Ultimately the learned Chief Judicial Magistrate mechanically took cognizance for offence under Section 420 of the I.P.C. Reliance has been placed on the ratio laid down by the Apex court in the case of GHCL Employees Stock Option Trust versus India Infoline Limited reported in 2013(4) SCC 504. Para 19 of which reads as follows:- “19. In the order issuing summons, the learned Magistrate has not recorded his satisfaction about the prima facie case as against Respondents 2 to 7 and the role played by them in the capacity of Managing Director, Company Secretary or Directors which is sine qua non for initiating criminal action against them. Recently, in Thermax Ltd. V. K.M. Johny while dealing with a similar case, this Court held as under: (SCC p. 429, paras 38 & 39) “38. Though Respondent 1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with the appellant Company by initiating the criminal prosecution, it is pointed out that Appellants 2 to 8 are the ex- Chairperson, ex-Directors and senior 4 Patna High Court Cr.Misc. No.44752 of 2010 (6) dt.25-11-2013 4 / 7 managerial personnel of Appellant 1 Company, who do not have any personal role in the allegations and claims of Respondent 1. There is also no specific allegation with regard to their role. 39. Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 I.P.C., it is to be noted that the concept of „vicarious liability‟ is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant Company.” Hence, it is submitted that even by assuming the accusations to be true, no case under Section 420 of the I.P.C. is made out against the petitioners. It is submitted by learned counsel for the complainant/O.P. No.2 that the complaint petition specifies the period during which the cheating was done and the misappropriation of money with regard to the Indira Awas Scheme is specifically alleged, when signatures of three persons namely Nasim Ansari, Bimal Saha and Shiv Narain Mandal
Legal Reasoning
were taken on the plain paper and finding prima facie case, the 5 Patna High Court Cr.Misc. No.44752 of 2010 (6) dt.25-11-2013 5 / 7 order of cognizance was passed. Considering the rival submissions of the parties, it is not in dispute that the investigating agency did not find the case true against the petitioner. Moreover neither the complaint nor the enquiry witnesses suggest any specific accusation against the petitioners. The complainant has specifically alleged that signatures of witnesses Nasim Ansari, Bimal Saha and Shiv Narain Mandal were taken on the plain paper for misappropriation of their money under Indira Awas Scheme, but three witnesses were not examined under section 202 of the Code of Criminal Procedure, which clouds the prosecution case. The offence of cheating has been defined under Section 415 of the I.P.C., while the definition of cheating and dishonestly inducing for delivery of property has been given in Section 420 of the I.P.C., which read as follows :- 415. Cheating:- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in 6 Patna High Court Cr.Misc. No.44752 of 2010 (6) dt.25-11-2013 6 / 7 body, mind, reputation or property, is said to “cheat”. 420. Cheating and dishonestly inducing delivery of property:- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The conjoint reading of sections 415 and 420 of the Indian Penal Code suggest that for constituting the offence of cheating or cheating dishonestly for delivering any property, some person has to be deceived fraudulently or induced dishonestly for delivery of any property but in the present case, none came forward to depose, particularly, the witnesses cited in complaint petition who claimed to have been cheated. Considering the fact that learned Chief Judicial Magistrate has not recorded the satisfaction about the prima facie commission of the offence under Section 420 of the I.P.C., which has been deprecated by the Apex court in the case 7 Patna High Court Cr.Misc. No.44752 of 2010 (6) dt.25-11-2013 7 / 7 of GHCL Employees Stock Option Trust versus India Infoline Limited (supra), hence, no offence under section 420 of the Indian Penal Code is made out against the petitioners.
Decision
In view of the above discussion, allowing the present prosecution to continue will amount to abuse of the process of court. Hence, in order to secure justice, the order dated 25.03.2010, by which process has been issued after taking cognizance including the entire prosecution of Complaint Case No. 1147 of 2009, arising out of Manihari P.S. Case No. 90 of 2008, pending in the Court of learned Judicial Magistrate, 1st Class, Katihar is hereby quashed. Accordingly the application is allowed. Shageer/- (Dinesh Kumar Singh, J)