Florance Kutur v. The State Of Bihar

The State Of Bihar. Ramanand Singh son of Ram Padarath Singh, resident of Village-Keel Karhara, P.S.-Barauni, District- Begusarai. .... .... Opposite Parties ============================================== Appearance : For the Petitioner : Mr. Nandan Prasad Singh, Adv. Mr. Manish Kumar, Adv. Mr. Surendra Prasad Singh, Adv.

For the State : Mr. Dashrath Mehta, A.P.P. For the O.P. No. 2 : Mr. Subhash Pandey, Adv. Mr. Ajay Kumar Tiwary, Adv. ============================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAV ORDER 8 29 -02-2012 The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 30.08.2004, passed in Complaint Case No. 1125 (C) of 2004 by the Court of Sri M.K. Singh, Judicial Magistrate, 1st Class, Begusarai, summoning the accused- petitioner, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 420 of the Indian Penal Code and also the order dated Patna High Court Cr.Misc. No.35968 of 2008 (8) dt.29-02-2012

14.07.2008 passed by the Additional Sessions Judge-F.T.C.-II, Begusarai, dismissing the Criminal Revision No. 356 of 2004, preferred by the accused-petitioner against the aforesaid summoning order dated 30.08.2004.

2. In brief, the case is that the opposite party no. 2, Ramanand Singh, filed the Complaint Case No. 1125 (C) of 2004 in the Court of the Chief Judicial Magistrate, Begusarai against the petitioner, alleging therein that on 10.01.2004, the accused-petitioner called him and showed the need of Rs. 50,000/- and assured him to return the money after one month on taking the loan. It is further alleged by opposite party no. 2 that since the accused-petitioner was his officer, so he arranged Rs. 50,000/- and handed over to the accused-petitioner in presence of witness no.1, Shyam Kishore Shah, saying to return the same within a month. After one month, when the complainant-opposite party no. 2 asked the accused-petitioner to return the money, he started to avoid saying that he will get to engage any person in Class-IV employee as Khalasi. On

19.08.2004, when the complainant-opposite party no. 2 went to resident of accused-petitioner and asked to return the money then, he refused to return the money.

After filing of the complaint petition by the Patna High Court Cr.Misc. No.35968 of 2008 (8) dt.29-02-2012 opposite party no. 2, on enquiry under Section 202 of the Code of Criminal Procedure, the Court of Sri M.K. Singh, Judicial Magistrate, 1st Class, Begusarai summoned the accused- petitioner through the impugned order dated 30.08.2004, finding prima facie case under Section 420 of the Indian Penal Code. Being aggrieved and dissatisfied, the accused-petitioner preferred the Criminal Revision No. 356 of 2004 which was dismissed by the Court of Additional Sessions Judge-F.T.C.-II, Begusarai through order dated 14.07.2008.

The learned counsel appearing on behalf of petitioner submits that the accused-petitioner was the officer in Railway Department at Kharahara, the local people who were engaged in service in Railway Department, used to harass the accused-petitioner on asking to do the duty properly, out of which the opposite party no. 2 filed this false complaint case. It has been further submitted that if the allegation as made in the complaint petition, taken to be true at its face value, the dispute is of civil in nature, as such, the impugned order summoning the accused-petitioner for the offence under Section 420 of the Indian Penal Code is amount to be abuse of the process of the Court.

On the other hand, learned counsel appearing on Patna High Court Cr.Misc. No.35968 of 2008 (8) dt.29-02-2012 behalf of opposite party no. 2 submits that the learned Magistrate has rightly summoned the accused-petitioner, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 420 of the Indian Penal Code and the learned Additional Sessions Judge has rightly dismissed the Criminal Revision No. 356 of 2004, as preferred by the accused-petitioner against order dated 30.08.2004.

On bare perusal of the complaint petition, it appears that the allegation is about taking the friendly loan of Rs. 50,000/- by the accused-petitioner to the complainant- opposite party no. 2, and on demand the same was not returned. If the allegation as made in the complaint petition is taken to be true at its face value and accepted to be true in entirety, the same do not constitute the offence against the petitioner under Section 420 of the Indian Penal Code as the ingredients required for the offence of criminal breach of trust and cheating are lacking. Moreso, the dispute as appears from the complaint petition is of civil in nature. As such, the impugned order, summoning the accused-petitioner for the offence under Section 420 of the Indian Penal Code, appears to be an abuse of the process of the Court.