Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 14056 of 2012 ====================================================== 1. Satan Mahto, S/O Late Mangal Mahto, Resident of Mohalla - Panchupur, Rosera, P.S.- Rosera, District - Samastipur 2. Bishwambhar Thakur, S/O Late Braj Bhushan Thakur, Resident of Mohalla - Prabhu Thakur, P.S.- Rosera, District- Samastipur .... .... Petitioner/s Versus 1. The State of Bihar 2. Kamal Deo Thakur, S/O Late Braj Bhushan Thakur, Resident of Mohalla - Bel Bagh at Bettiah, P.S.- Bettiah Muffassil, District - West Champaran .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Krishna Prasad Singh, Advocate For the Opposite Party/s : Mr. Bimlesh Kumar Pandey, Advocate For the State : Mr. P. K. Jha, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD C.A.V. ORDER 4 08-08-2013 This is a petition for quashing the order dated 22.11.2011 passed by the learned Judicial Magistrate, Bettiah in Complaint Case No. 1127C of 2011 by which the learned court below took cognizance for the offence under Sections 323, 356, 418, 422 and 120(B) of the Indian Penal Code. The prosecution case as alleged in the complaint is that the accused no. 4 of the complaint who is petitioner no. 2 in this petition is full-brother of the complainant. The accused no. 3, of the complaint who is petitioner no. 1 in this petition, along with two others accused nos. 1 and 2 of the complaint are managing the orchard of complainant and his family. It is further alleged that immediately thereafter the complainant made a written complaint to Bettiah, Muffasil P.S. seeking very quick action but the complainant visited the P. S. on 3rd June, 2011 when the police returned the written complaint and asked the complainant to file case in court because the accused persons are of other distant district. It
Legal Reasoning
Patna High Court Cr.Misc. No.14056 of 2012 (4) dt.01-07-2013 2 has further been alleged that prior to institution of this case, a suit was pending between the parties bearing Partition Suit No. 64 of 2002 for the entire purchase properties by the complainant as the highest bidder in auction. The agreement for contract was executed for same properties on Hunda. It is further alleged that in Partition Suit No. 64 of 2002 Receiver was appointed by the Sub-Judge-2nd, Rosera, Samastipur for the entire suit properties. The suit properties auctioned on 27.03.2011 in Rosera and Receiver was appointed for utilizing the different suit properties from April, 2011 to 31st March, 2012. The properties mentioned in Annexures 1 and 2 of suit were given on contract to witness no. 3 for Rs.30,000/- for the period from April, 2011 to 31st March, 2012 and properties mentioned in Annexures 3 to 6 of the suit were given to witness no. 3 on contract for Rs.1,20,000/-. It is further alleged that on 29th May, 2011 in the morning the four accused persons came along with witness no. 3 and requested to revoke the contract given to witness no. 3 and witness no. 3 agreed for such revocation on payment of Rs.12,000/- and it is sated that Rs.12,000/- was paid to witness no. 3 by the accused no. 4 who is petitioner no. 2 on behalf of all the 4 accused persons and the contract with witness no. 3 was revoked. It is further alleged that three fresh agreements were executed on date and place of occurrence. The first agreement was with regard to property mentioned in Annexures 1 and 2 for Rs.30,000/- and the property mentioned in Annexures 3 and 4 for Rs.90,000/-. The 3rd contract was for Rs.30,000/- with regard to property of Annexure – 6. It is stated that with regard to the properties mentioned in Annexure – 1 & 2 of the first contract, out of Rs.30,000/-, Rs.5,000/- was paid by accused no. 1 to the complainant and out of second contract of Rs.90,000/- for the property of Annexures 3 and 4, Patna High Court Cr.Misc. No.14056 of 2012 (4) dt.01-07-2013 3 Rs.10,000/- was paid by the petitioner no. 2 to the complaint and for the 3rd contract for Rs.30,000/- for property of Annexures 5 and 6, Rs.5,000/- was paid by accused no. 3 to the complainant. The three contract papers were to be kept by the complainant. It is further alleged that the accused persons in one voice sought the photo copies of the said contracts. For obtaining such photo copies, the complainant accompanied with the witnesses and accused persons proceeded to a photo stat shop. While the accused persons were on way to the photo stat copy shop, one accused snatched three agreement (contract) papers and the other accused persons gave joint push and fled away along with the three contract papers, though the advance given totaling Rs.20,000/- remained with the complainant. On the complaint, the complainant and witnesses were examined on oath and after taking into consideration the statement of the witnesses took cognizance for the offence under Sections 323, 356, 418, 422, 120B of the Indian Penal Code. Learned counsel for the petitioners, however, contended that allegation made in complaint petition is inherently improbable and manifestly absurd in view of fact that petitioner no. 2 is the full-brother of complainant and a partition suit is going on between them. It is highly improbable that a person in litigation will come from Samastipur to Bettiah and will persuade to revoke the contract given in auction and will enter into fresh contract and then pay Rs.20,000/- and will flee away with contract papers. It is further contended that taking into consideration the allegation on the face value of the complaint even then it does not make out an offence under Sections 418 and 422 of the Indian Penal Code. It is further contended that the allegations made are Patna High Court Cr.Misc. No.14056 of 2012 (4) dt.01-07-2013 4 absurd, ill motivated only to harass the petitioners with ulterior motive to wreak vengeance as the suit proceeding is pending between them at Samastipur and hence, the order taking cognizance and criminal prosecution is an abuse of process of the court and the case is covered under category 4 and 7 of Bhajan Lal’s Case reported in 1992 Suppl. (1) SCC 335. Learned counsel for the complainant, however, contended that the allegations made in the complaint makes out an offence as there are allegations of cheating and snatching the agreement papers by force and hence, a criminal offence is made out. In view of the submissions of the parties, the question for consideration is whether allegation made makes out an offence and it suffers from improbable, absurdity and malice and whether the case has been filed with ulterior motive to harass the petitioners and the case is covered under category 4 and 7 of Bhajan Lal’s Case. However, taking into consideration the allegations made in the complaint, it is apparent that the complainant is a resident of Bettiah and further the petitioner no. 2 who is accused no. 4 in the complaint petition is the full brother of complainant and is resident of District Samastipur. Petitioner no. 1 and accused no. 3 of the complaint is also resident of Samastipur. The Partition Suit No. 64 of 2002 is pending at Samastipur, Civil Court in between the complainant and petitioner no. 2. The suit property under Receiver was auctioned and taken on contract by witness no. 3. It is further alleged that the accused no. 4 the full brother of complainant in Partition Suit No. 64 of 2002 came from Samastipur to Bettiah to the outer east varamdah of complainant’s residence at Bettiah with other three accused persons including petitioner no. 1 on Patna High Court Cr.Misc. No.14056 of 2012 (4) dt.01-07-2013 5 29.05.2011 in the morning. They brought witness no. 3 and requested to revoke the contract already given to witness no. 3 who agreed for such revocation on getting payment of Rs.12,000/- from the said four accused persons jointly for reimbursing the expense incurred by him in looking after the property. Accordingly, Rs.12,000/- was paid by accused no. 4 on behalf of all the four accused persons and the contract with witness no. 3 was revoked. Thereafter three fresh contract was executed. 1st contract of Rs.30,000/- for property of Annexures 1 and 2 of suit and accused no. 1 paid Rs.5,000/- as advance to the complainant. Second contract for Rs.90,000/- of property of Annexure-1 and addition land of plot 975 of Aneexure-5 and accused no. 4 paid Rs.10,000/- as advance and the third agreement with accused no. 3 for property mentioned in Annexure – 6 as well as rest property of Annexure-5 for Rs.30,000/- and Rs.5,000/- advance was paid. Hence, in all Rs.12,000/- was paid for revoking the contract with witness no. 3 and Rs.20,000/- was paid as advance to the complainant for the contract, i.e., in all paid Rs.32,000/- for the said contract and thereafter it is alleged that after contract the accused persons on a plea of getting copy of the contract paper they fled away along with contract paper. The allegation itself appears to be absurd as the complainant filed partition suit against the accused persons in which the entire property has been kept under Receiver and will come from Samastipur to Bettiah to enter into a contract revoking the earlier contract paid Rs.32,000/- and fled away in the manner alleged taking into the papers for contract is highly improbable and manifestly absured. This fact itself indicates that the relation between the brother may not have been cordial when a partition suit is pending and the property has been put under Patna High Court Cr.Misc. No.14056 of 2012 (4) dt.01-07-2013 6 Receiver and being auctioned for management on Hunda. However, even in such a strain relation it is highly improbable that accused person paid Rs.12,000/- in cash to the witness no. 3 for revoking the contract and will make a contract with complainant and pay Rs.20,000/- as advance for contract and then fled away by pushing the complainant and taking the contract paper leaving Rs.32,000/- paid to the complainant and his witness. The allegation on face value of the complaint itself appears to be highly improbable and manifestly absurd. However, taking into consideration the entire allegation on the face value made in the complaint on the basis of which cognizance has been taken under Sections 418 and 422 of the Indian Penal Code are concerned, it is apparent that no offence under Section 418 of the Indian Penal Code is made out. To constitute an offence under Section 418 of the Indian Penal Code it has first to confirm the ingredients of Section 415 of the Indian Penal Code and to constitute a cheating there must be fraudulent and dishonest deception inducing a person so deceived to deliver any property. However, even accepting the allegation true, there is no allegation that the accused person fraudulently and dishonestly deceived the complainant by virtue of which the complainant delivered any property rather it is a complainant who managed to get money to the tune of Rs.12,000/- from accused person in favour of witness no. 3 and got Rs.20,000/- as advance for the three contracts entered into between the party. Even accepting the allegation, offence under Section 418 of the Indian Penal Code is not made out. There is no allegation that the said documents alleged to have been snatched was ever used by the accused person fraudulently and dishonestly and hence, the allegations Patna High Court Cr.Misc. No.14056 of 2012 (4) dt.01-07-2013 7 made in the complaint does not make out an offence under Section 415 of the Indian Penal Code or Section 418 of the Indian Penal Code. So far the offence under Section 422 of the Indian Penal Code is concerned, to prove the offence the ingredient required for establishing the guilt is that there is debt or demand due to the accused or some person and further the accused prevented such debt or demand from being made legally available for the debt and he did above dishonestly and fraudulently. The allegation made neither makes out a case for any debt against any accused person nor allegation that the accused person prevented any debt and demand due to himself or any other person from being made available according to law to the creditor made available his honesty and fraudulently. Hence, neither offence under Section 422 of the Indian Penal Code nor under Section 418 of the Indian Penal Code is made out, on the allegation made in the complaint. So far the offence under Sections 356 and 323 of the Indian Penal Code is concerned the allegation itself appears to be highly improbable and manifestly absurd that accused person petitioner no. 2 the full brother of the complainant will come from Samastipur to Bettiah to assault and intimidate the complainant at Bettiah and pay Rs.12,000/- for revocation of contract and pay Rs.20,000/- after executing agreement and then fled away from the house of the complainant by pushing his brother taking the contract paper. However, I am conscious of the legal position that the inherent power under Section 482 of the Cr.P.C. is to be exercised sparingly and with great caution in the exceptional circumstance. However, if the allegation made in complaint on the face of record itself appears that accused cannot be called to answer the criminal liability. The offence Patna High Court Cr.Misc. No.14056 of 2012 (4) dt.01-07-2013 8 alleged is on face value does not make out an offence and the criminal proceeding is manifestly absurd and inherently improbable attended by malice with mala fide intention with ulterior motive for wreaking vengeance the allowing the prosecution to continue shall be an abuse of process of the court. It is not expected that a full-brother against whom the litigation in partition suit will come to Bettiah from Samastipur and pay Rs.32,000/- for revoking the contract and enter into new contract will flee away with contract paper pushing the complainant rather the possibility that the complainant filed with frivolous allegation so that the brother and other accused may be harass by facing trial in criminal case at Bettiah when they are resident of Samastipur. Hence, taking into consideration the entire facts and circumstances of the case, it is apparent that allegation are highly improbable and manifestly absurd with intention to wreak vengeance against the petitioner no. 2 with whom the civil suit is pending and hence, allowing the order taking cognizance and prosecution to continue shall be an abuse of process of the court as the case is covered under category 5 and 7 of Bhajan Lal’s Case reported in 1992 Suppl. (1) SCC 335. Hence, the impugned order taking cognizance for the offence under Sections 323, 356, 418, 422 and 120B of the Indian Penal Code and the criminal prosecution against the petitioners are hereby quashed.
Decision
Hence, the petition is allowed. Kundan/- (Gopal Prasad, J.)