MD. MOTI v. The State of Bihar & Ors

O R D E R The sole F.I.R. named accuse of Kewati P.S. Case No.91 of 2004 has prayed for the quashing of the order dated 1.11.2006 passed by the learned Chief Judicial Magistrate, Darbhanga, whereby he having differed from the final form submitted by the police has taken cognizance under Sections 406 and 420 I.P.C. against the petitioner as also the subsequent order dated 9.4.2007 passed by the learned Sessions Judge, Darbhanga in Criminal Revision No.262 of 2007, whereby the order dated 1.11.2006 has been sustained. One Md. Sahjada, the informant, impleaded herein as O.P. No.2 filed the Complaint Case No.941 of 2004 which was transmitted to the concerned police station under Section 156(3) Cr.P.C. and on the basis thereof the aforesaid Kewati P.S. Case came to be registered. The prosecution case as made out in the complaint petition - 2 - was that the complainant/informant had arranged for loan to the petitioner from his brother who deals in cement, sand, stone chips and iron rods. It is alleged that the petitioner was given Rs.10,000/- in cash to purchase such articles but the money was not returned and when on one occasion Opposite Party No.2 allegedly accosted the petitioner for return of the money the petitioner is then alleged to have entered into a verbal and physical scuffle. The petitioner is also alleged to have abused and assaulted the Opposite Party No.2 and snatched Rs.1000/- from his upper pocket. After due investigation the police appeared to have submitted a final report to the learned Chief Judicial Magistrate who differing from the same, as stated above, took cognizance under Sections 406 and 420 I.P.C. It has been submitted on behalf of the petitioner that it would be apparent from perusal of the F.I.R. that a case which is absolutely frivolous and concocted has been lodged by O.P. No.2 which would be obvious from the fact that O.P.No.2 as also the petitioner were well known from before and they appear to have business relationship between them. Even the brother of O.P. No.2 who deals in building materials was also known to the petitioner and it was on account of such old acquaintance that the petitioner chose to purchase house building articles from the shop of the brother of O.P. No.2. It has further been submitted that in course of the investigation nothing substantial could be collected against the petitioner and all the witnesses who appear to have supported the prosecution version have - 3 - stated that they learnt that some money is due against the petitioner which he needs to pay to the brother of O.P. No.2. According to the learned counsel for the petitioner such vague statement cannot be termed as legal evidence against the petitioner. It is said that the investigation agency had been shown the cash memos of the shop of the brother of O.P. No.2 which disclosed that on various occasions whenever articles were supplied by the brother of O.P. No.2 to the petitioner money was paid and subsequently receipt was granted. On this premise, it has been submitted that in such circumstances it cannot be believed that the petitioner would take loan from O.P. No.2 and simultaneously also purchase articles from the shop of his brother under differed payment system. It was further submitted on the aforesaid premise that even if the allegations were accepted at their face value, though not admitting, the entire transaction amounts to a business transaction for which no criminal liability lies on the petitioner and would for all practical purposes fall within the domain of civil liability. It goes without saying that from the facts narrated in the complaint petition which forms the basis of the prosecution case, it would be apparent that the only cause for the filing of the case was the alleged pendency of some amount of O.P. No.2 with the petitioner and the bone of contention was the money dispute. It would also appear from the allegations made in the complaint petition/written report that the ingredients of the offences under Sections 406 and 420 I.P.C., i.e. criminal breach of trust and cheating , are not made out and the entire - 4 - grievance of the complainant/informant/O.P. No.2 happens to be a matter of civil dispute. There is no gainsaying that very often criminal proceedings are instituted to coerce the accused to make an early payment since a civil litigation may consume a considerable time but that by itself does not give validity for the Magistrate to take cognizance in matters of civil dispute. From perusal of the impugned order of the learned Chief Judicial Magistrate, it appears that having differed with the final form submitted by the police he has placed reliance on certain paragraphs of the case diary which according to him fully support the prosecution case and from the statement of the witnesses a prima facie case under Section 406 I.P.C. is made out. The submission of the learned counsel for the petitioner is that most of these persons whose statements have been referred to by the learned Chief Judicial Magistrate in the impugned order happen to be hearsay witnesses which cannot be taken into account or relied upon. I am inclined to agree with the submissions advanced by the learned counsel for the petitioner. Having considered the facts and the circumstances of the case and the discussions made above, I am of the opinion that the ingredients of offences under Sections 406 and 420 I.P.C. do not appear to have been made out and the instant case is purely of civil in nature. - 5 - Accordingly, the impugned order is quashed and the application is allowed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 20th of February, 2009. Pradeep Srivastava/A.F.R.