DR. RAMESH KUMAR SINGH v. Digha, District Patna

: Mr. Rajneesh, Advocate : Mr. Jharkhandi Upadhaya, A.P.P. : Mr. Raghendra Kumar, Advocate O R D E R This application at the instance of the sole accused of Complaint Case No. 2791(C) of 2005 against whom cognizance has been taken is for quashing of the entire proceeding arising therefrom including the order dated 7.5.2006 / 8.5.2006 passed therein by Sri D.M.Tripathi, learned Judicial Magistrate, Patna, whereby he has taken cognizance of offences under sections 403 and 420 IPC and has summoned the petitioner to face trial. One Gopal Prasad Gupta, the complainant, impleaded as O.P. No. 2 herein, filed the aforesaid complaint inter alia alleging that since he and the petitioner were close acquaintances he had loaned a sum of Rs. one lac to the accused who was in urgent need of money on the assurance that the same would be refunded within two months. It is further alleged that notwithstanding the said amount not having been refunded the complainant on repeated request of the accused gave a further sum of Rs. five lacs in five instalments on five different days i.e. 5.5.2000, 5.6.2000,

15.6.2000, 7.7.2000 and 5.8.2000 and in token of having received 2 the money the accused is said to have issued money receipts. The further allegation is that on the expiry of two months when the complainant demanded refund of the money the petitioner expressed his inability to return the same at the relevant time but he continued to pay the interest for some months whereafter even the payment of interest was stopped. It is said that on 5.5.2005 the petitioner executed a Vadanama for an amount of Rs.8,40,000/- but the amount was never paid to the complainant and when legal notices were sent to the petitioner on 7.7.2005 and 30.8.2005 the same was responded by the petitioner by giving threats. It is also alleged that the petitioner gave 17 cheques of the total amount of Rs. 9,73,676/- all of which bounced which made the complainant apprehensive that he had been cheated by the petitioner and accordingly he filed the complaint case. Assailing the impugned order the submissions on behalf of the petitioner is that admittedly the complainant and the petitioner being acquainted and residing at the same place, the complainant in good faith had advanced money but while filing the complaint, the complainant had suppressed material facts and had not approached the court with clean hands. In this connection it was submitted that prior to the filing of the instant complaint the petitioner had already filed a complaint case being Case No. 2725(C) of 2005 on 14.9.2005, wherein cognizance had been taken under sections 420 and 406 IPC against the complainant and the instant complaint on false assertions was only to build up a 3 defence for himself and to harass the petitioner. In the said complaint case filed by the petitioner it was alleged that Gopal Prasad, O.P. No. 2 herein, had taken a loan of Rs. 5.25 lacs through account payee cheques and cash for business purposes and personal need with a promise to return the same within a short span of time and in case of non payment of the same, interest at the rate of 5% per month was liable to be paid to the complainant i.e. the present petitioner. It was further alleged that on 15.12.2004 when the petitioner herein requested for refund of his money O.P. No. 2 herein showed his inability to pay the same and assured that he will pay the entire amount by June, 2005, and notwithstanding the same on 12.9.2005 O.P. No. 2 herein along with five unknown others threatened the petitioner herein and forcibly took his signature on five blank sheets of paper. The Xerox copy of Complaint Case No. 2725 (C) of 2005 has been appended as Annexure 2 to the application. It has further been submitted on behalf of the petitioner that the learned Magistrate while taking cognizance had failed to appreciate the facts that the signature of the petitioner on the money receipts was not in a proper manner and was undated which leads to a presumption that the said money receipts were forged and fabricated which presumably were prepared for making a defence on behalf of the complainant – O.P. no. 2 herein and as such a charge under section 420 IPC was not sustainable. It was also submitted that the learned Magistrate while taking 4 cognizance had failed to consider the fact that the alleged Vadanama did not bear any signature and date and in all probability had been manufactured for the purpose of the case. It would also be relevant from the perusal of the complaint petition that no specific date has been mentioned with regard to the stoppage of payment of interest. It was further submitted that the learned cognizance taking court ought to have considered the fact that the entire dispute between the parties was of civil nature involving money transaction and filing of criminal case to settle the issue was not the proper remedy. O.P. No. 2 has appeared and filed a counter affidavit denying the allegation made in the application. It was submitted on behalf of O.P. No. 2 that admittedly he had sent two legal notices on 7.7.2005 and 30.5.2005 which were prior to the filing of the complaint case by the petitioner herein and the same was nothing but a defence which had been cooked up by the accused. It was also submitted that the petitioner had filed the said complaint case only on the basis of imagination and without any documentary proof whereas the instant complaint case by him is fully based on documentary proof. It was also submitted that the money receipt issued by the petitioner herein in token of receiving money did contain the signature of the petitioner and the submissions that there was no signature of the Vadanama and his signatures on the money receipt were not proper also goes to show that falsity of the case . 5 It appears that there are two complaint cases one filed by the petitioner being Complaint Case No. 2725(C) of 2005 and the other filed by O.P.No. 2 herein being Complaint Case No. 2791(C) of 2005 both of which involve looking into disputed facts and as such it would only be proper for both the cases to be heard by the same Court and the petitioner of both the cases be permitted to raise their individual issues at the time of framing of charge. In view of the disputed facts it would not be proper for this Court to decide whether the dispute is civil in nature. Accordingly I find no merit in this application which is dismissed. However, in the interest of justice, as stated above, both the complaint cases are directed to be heard by the same court and the parties therein are at liberty to raise all the issues raised by them before the trial court at the time of framing of charge and in the event of such issues being raised the court concerned shall pass appropriate order in accordance with law. Patna High Court, Patna. Dated : The 25th of June, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)