Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.32714 of 2011 ====================================================== 1. Suresh Prasad Son Of Ram Sharan Prasad Resident Of Chowk Bazar, Biharsharif P.S. Lahari District - Nalanda 2. Sanjay Kumar Verma Alias Sanjay Kumar Son Of Sures Prasad Resident Of Chowk Bazar, Biharsharif P.S. Lahari District - Nalanda 3. Vijay Kumar Verma Son Of Suresh Prasad Resident Of Chowk Bazar, Biharsharif P.S. Lahari District - Nalanda 1. The State Of Bihar Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 3 28-11-2013 The present application has been filed for quashing the order dated 9.6.2011 passed by learned Judicial Magistrate 1st class, Biharsharif, Nalanda in Complaint Case No. 1119C of 2010 whereby and whereunder the processes have been issued after cognizance being taken against the petitioners for the offences punishable under Section 406 of the I.P.C. The prosecution case is that the accused persons in a business transaction took jewellery and cash from the complainant on credit after making part payment, but ultimately Rs. 2, 09,703/- remained to be paid. When the complainant demanded the outstanding due amount, it was denied by the accused persons. After examining the complainant during enquiry
Facts
under Section 202 Cr.P.C. on solemn affirmation and recording of Patna High Court Cr.Misc. No.32714 of 2011 (3) dt.28-11-2013 2/6 statements of enquiry witnesses, process was directed to be issued after cognizance being taken under Section 406 of the IPC. It is submitted by the learned counsel for the petitioners that informatory petition was filed on 10.4.2010, on behalf of the petitioners with regard to misappropriation of Rupees Twelve Lacs belonging to the petitioner, by the complainant, whereas the present complaint was filed on 8.8.2010. The petitioner also filed Money Suit no. 10 of 2011 for recovery of Rupees Twelve Lacs, on 27.4.2011, against the complainant. Hence, as a retaliatory measure, the present case has been lodged. It is further submitted that the complainant during enquiry under Section 202 Cr. P.C., admitted that for recovery of money, the complaint has been filed. It is submitted by the learned counsel for the complainant/O.P. No. 2 that on finding prima facie case, cognizance has been taken and processes have been issued. Section 405 of the IPC contemplates that the offence of criminal breach of trust is made out when any person, being in any manner entrusted with the property, or with any dominion over the property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode Patna High Court Cr.Misc. No.32714 of 2011 (3) dt.28-11-2013 3/6 in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust. In the present case the entrustment of property is not specific and the receipt which has been brought on record is only signed by petitioner no. 2. The accusation levelled in the complaint and reiterated in solemn affirmation of the complainant and the statement of the enquiry witnesses suggest that the complaint has been filed for recovery of the money in a business transaction. Use of the criminal forum for redressal of the civil nature of dispute 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. Paragraph no. 13 of the judgment reads 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. In G.Sagar Suri V State of U.P. this Court observed: "It is to be seen if a matter, which is essentially of Patna High Court Cr.Misc. No.32714 of 2011 (3) dt.28-11-2013 4/6 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." The order taking cognizance does not involve any formal action but occurs as soon as the magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when the magistrate first takes judicial notice of an offence. This is the position when the magistrate takes cognizance of an offence on a complaint or on police report or on information of the person other than police report. The issuance of process is at the subsequent stage, when, after considering the materials placed before it, the court decides to proceed against the offenders against whom a prima facie case is found to be made out. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course as has been laid down by the Apex court in the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, reported in (1998) 5 Supreme Court Cases 749. Paragraph 28 of the judgment reads as under: “Summoning of an accused in a criminal case is Patna High Court Cr.Misc. No.32714 of 2011 (3) dt.28-11-2013 5/6 a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or
Legal Reasoning
otherwise and then examine if any offence is prima facie committed by all or any of the accused.” Admittedly, in the present case, the complainant admitted that for recovery of the money the complaint has been filed when the Money Suit was pending prior to the lodging of the complaint. Thus, in view of this court, the issuance of process by the learned court below in the present case was absolutely not justified. There is no dispute with regard to the legal proposition that breach of trust or cheating are both, a civil wrong and a Patna High Court Cr.Misc. No.32714 of 2011 (3) dt.28-11-2013 6/6 criminal offence, but under a certain situation, where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence. The present case predominantly relates to a civil nature of dispute. From the materials on record, it appears that the present complaint has been filed as a retaliatory measure to the money suit to wreak vengeance and the criminal judicial process has been sought to be used as an instrument of oppression and needless harassment. In view of the aforesaid discussion, continuation of the present proceeding will amount to an abuse of the process of the court. Hence, to secure the ends of justice, the order dated 9.6.2011 passed by learned Judicial Magistrate 1st class, Biharsharif, Nalanda whereby processes have been directed to be issued after taking cognizance including the entire prosecution with regard to the petitioners in Complaint Case No. 1119C of 2010 is hereby quashed. Accordingly, this application stands allowed. (Dinesh Kumar Singh, J) Anil/-