Patna High Court - Orders
Mithilesh Kumar Sinha vs State Of Bihar & Anr on 17 September, 2008
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.32991 of 2007
MITHILESH KUMAR SINHA
Versus
STATE OF BIHAR & ANR
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For the Petitioner : M/s. Rupak Kumar and Nishant Kumar,
Advocates.
For the State : Mr. Jharkhandi Upadhayay, A.P.P.
For O.P. No.2 : M/s. Rajiv Kumar Singh and Santosh
Kumar, Advocates.
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ORDER
The sole accused of Complaint Case No.1727(C) of 2006 through this application has prayed for the quashing of the entire allegedly malicious, vexatious and frivolous prosecution arising from the said complaint including the order dated 06.06.2007 passed therein by Sri A.K. Singh, Judicial Magistrate, First Class, Patna, whereby he has taken cognizance of offences under Sections 405 and 504 I.P.C. against the petitioner.
The complainant, one Guru Prasad Singh, impleaded herein as O.P. No.2, filed the aforesaid complaint case on 19.6.2006 alleging inter alia that he was running a business of readymade garments shop in the name and style of "Ashoka Dresses" in the tenanted premises of the petitioner on monthly rental since the past 40 years and he was paying the monthly rental regularly. It is further alleged that the petitioner approached him and gave out that since the shop premises was a very old structure it required renovation and for the purpose money was required and as per demand the complainant arranged -2- Rs.50,000/- and paid the same to the petitioner through cheque no.029066 dated 16.1.2006 of the Central Bank of India, Birla Mandir Branch. The said cheque was drawn in the name of Parijat Sinha, the son of the petitioner. The complainant demanded a receipt which was assured to be given on the following day.
It is further alleged that on 17.6.2006 when the complainant was sitting in his shop the petitioner along with 5-6 unknown others arrived on a white Maruti car and tried to evict him illegally and forcibly but on hulla being raised, neighbours and passers by arrived and on their intervention the petitioner with his hench men fled away. The further case of the complainant is that the petitioner was misappropriating the aforesaid amount and has cheated him by misrepresentation that after receiving the amount he would provide him with a well furnished newly constructed shop premises for his business purposes but was in fact evading the same with malafide intentions and as such the petitioner was liable to face prosecution under Sections 406, 420, 323, 504 I.P.C. However, after due inquiry under Section 202 Cr.P.C. the learned Magistrate took cognizance only under Sections 406 and 504 I.P.C.
In R.P. Kapur Vs. State of Punjab (AIR 1960 SC 866) the Apex Court took pains to summarize some categories of cases where the inherent power could and should be exercised to quash the proceedings:
(i) Where it manifestly appears that there is a legal bar against the institution or continuance -3- e.g. want of sanction;
(ii) Where the allegations in the first information report or complaint taken at the face value and accepted in their entirety do not constitute the offence alleged;
(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
Then over three decades later the Apex Court in State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 set out in some detail the scope of exercise of power under Section 482 Cr.P.C. and the categories of cases, eight in number, where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice.
It is in this backdrop that the instant complaint is required to be examined keeping in mind the dictum that in proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.
The clear assertion of the learned counsel for the petitioner is that the instant complaint case on false and frivolous accusations has been brought by the complainant by way of after thought and counter blast to Kadam Kuan P.S. Case No.503 of 2006 under -4- Sections 147, 148, 448, 380, 506, 508 I.P.C. brought by the petitioner against the complainant and his son, Vijay Kumar Singh, in respect of an occurrence said to have taken place on 18.6.2006. This, according to the learned counsel, would be apparent from the fact that the complaint case came to be filed one day after the registration of the police case (i..e. 19.6.2006) and was in respect of an occurrence which purportedly took place on 17.6.2006.
It was next submitted by the learned counsel for the petitioner that the complainant had not approached the court with clean hands and for genuine and bonafide cause of action. While admitting that a cheque of Rs.50,000/- had been given in the name of Parijat Sinha, the son of the petitioner, who has been living in the U.S.A. but maintains a Savings Bank Account No.9616 jointly with the petitioner with the Central Bank of India, Birla Mandir Branch, it was submitted that the same was by way of advance of consideration amount for purchase of Parijat Sinha's flat which he wanted to sell and the complainant's son Vijay Kumar Singh wanted to purchase. The said cheque was deposited in the joint account of Parijat and the amount credited in due course. However, a few days later complainant and his son approached the petitioner and showing their disinclination to purchase requested for refund of the amount of advance which was duly complied by the petitioner who issued cheque no.026526 dated 13.2.2006 of Savings Bank Account No.9616 in the name of the complainant which as per the details of the pass book (Annexure-7) was encashed by Guru Prasad Singh, the -5- complainant on 16.2.2006.
It was further submitted by the learned counsel for the petitioner that the fact of having received back the sum of Rs.50,000/- has been admitted by the complainant in the plaint of Title Suit No.378 of 2006 that he had filed against the petitioner and his son.
On the aforesaid premise the submission of the learned counsel for the petitioner is that from the above narration of the developments, it would be apparent that no offence under Section 406 I.P.C. can be said to have been made out against the petitioner and the learned Magistrate had mechanically taken cognizance thereunder without applying his mind to the facts and the circumstances of the case.
To constitute an offence under Section 406 I.P.C. there must be a dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged. From the above, it would be apparent that the petitioner had not misappropriated the money which was paid in the name of his son towards advance of consideration money for the purchase of the flat of his son and as soon as the complainant expressed his disinclination to the purchase and requested for refund of the amount it was immediately returned as far back as on 16.2.2006.
The action of the complainant clearly shows that he had not approached the court with the complaint petition with clean hands and having suppressed material facts that the money had already been -6- refunded to him at his request has taken a false plea in the complaint of the petitioner having demanded Rs.50,000/- towards renovation work of the shop premises and had not carried out the renovation work and instead had retained the money. This also lends support to the petitioner's case of the complaint having been filed as an after thought on false, frivolous and vexatious grounds and had misled the court by leading false evidence to believe that an offence under Section 406 I.P.C. had been made out.
Similar appears to be the situation with the offence under Section 504 I.P.C., i.e., insult intended to provoke breach of the peace. When part of the complaint petition is shown to be false and made on false assertions it goes without saying that the complaint petition as a whole is misconceived and has been filed to harass the petitioner either to put pressure or by way of counter blast to the earlier police case filed by the petitioner against the complaint and his son.
The learned counsel for O.P. No.2, in this situation was not in a position to defend his client and only mumbled that offences under Sections 406 and 504 I.P.C. had been committed and this Court in a proceeding under Section 482 Cr.P.C. could not look into matters of facts and figures.
True it is that the scope of Section 482 Cr.P.C. is limited but then it is to be exercised to prevent abuse of the process of the court or otherwise to secure the ends of justice. In the instant case as has been discussed above, the complainant had suppressed material facts -7- in his complaint petition and had not approached the court with clean hands and had sought to gain the favour of the court by making false, frivolous and vexatious allegations which, in fact, were not proved and to permit continuation of a criminal proceeding based on false and frivolous allegation would amount to an abuse of the process of the court.
In the circumstances stated above, permitting the impugned order taking cognizance on the basis of false averments to continue would amount to an abuse of the process of the court.
Accordingly, the impugned order is quashed and the application is allowed.
(Abhijit Sinha,J) Patna High Court, Patna.
Dated: The 17th of September, 2008. Pradeep Srivastava/A.F.R.