Patna High Court
Ashok Kumar Sinha vs State Of Bihar on 12 August, 2010
Author: Rakesh Kumar
Bench: Rakesh Kumar
CRIMINAL MISCELLANEOUS No.36478 OF 2000
In the matter of an application under Section-482 of the Code of
Criminal Procedure
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Ashok Kumar Sinha, Son of Late Shiv Nandan Prasad, resident of
House of Sri N.P.Saxena, Diwan Mohalla, Patna City, P.S.
Khajekalla, District-Patna -------- Petitioner
Versus
1. THE STATE OF BIHAR
2. Sri A.K.Thakur, Sr. Manager Marketing Bihar State
Pharmaceuticals & Chemical Development Corporation Ltd. (A
Govt. of Bihar undertaking) 5th Floor, „A‟ Block Mauryalok, New
Dak Bunglow Road, Patna-800001 ------- Opp.Parties.
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For the petitioner: S/Sri Rajeev Kumar Verma, Sr. Advocate
K.N.Sahay, Advocate
For the State: Sri A.M.P.Mehta, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J.The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure , has prayed for quashing of an order dated 5.4.2000 passed by Sri Panchanan Sharma, learned Judicial Magistrate, 1st Class, Patna in Kotwali P.S. Case No.82 of 1998. By the said order, the learned Magistrate has taken cognizance of offences under Sections 406 and 420 of the Indian Penal Code. The petitioner has further prayed for quashing of the entire proceeding in Tr.No.1103 of 2000, arising out of Kotwali P.S. Case No.82 of 1998 pending in the court of learned Judicial Magistrate, 1st Class,Patna.
2. Short fact of the case is that on the basis of a written complaint, submitted by Senior Manager, Bihar State Pharmaceuticals & Chemical Development Corporation Ltd. ( hereinafter referred to as "the Corporation") to the Officer Incharge of Kotwali Police Station an F.I.R. vide Kotwali 2 (Sadar ) P.S. Case No.82 of 1998 was registered against six accused persons including the petitioner. It was disclosed by the informant that M/S D.D. Products, Patna City latter on converted as M/S D.D. Plastic Product Pvt. Ltd. having its registered address near Kurji Pull Kurji Dal Mill Kurji,Patna assured to convert raw materials in finished polythene bags on agreed conversion charge and on the assurance of Directors of said D.D. Plastic products Pvt. Ltd. , the Bihar State Pharmaceutical & Chemical Development Corporation Ltd. had given 100, 550 MT Raw materials consisting of 80:
850 MT. LDPE and 19.700 indoth one to M/S D.D. Plastic Products Pvt. Ltd.
to convert the raw material in finished polythene bags for forest Department in between 20.12.89 to 20.5.92 and paid Rs.4, 11,303.80 as conversion charge but the concerned supplied finished polythene bags of 61-195MT raw materials only and misused and misappropriated 39.355MT costing Rs.19.98,954.50 and inspite of repeated demand did not supply the finished goods or returned the balance raw materials to Bihar State Pharmaceutical & Chemical Development Corporation Ltd.. The Directors of D.D. Plastic Products Pvt. Ltd. on 18.4.95 committed in writing to supply finished goods of 39,355 Mt. raw materials or will return entire due stock of raw materials. The copy of minutes of the meeting held with Director of M/S D.D. Plastic Pvt. Ltd. and Bihar State Pharmaceuticals & Chemical Development Corporation Ltd. held on 19.4.95 was enclosed with the written complaint. It was alleged that since the concerned had intention to cheat the Bihar State Pharmaceutical & Chemical Development Corporation Ltd. from the date of inception, same had not supplied finished goods nor returned the raw materials. Directors of D.D. Products/ D.D. Plastic Product Pvt. Ltd, C/o P.R.M. Plastic works had intention to cheat from the very beginning , so 3 misused the raw material taken for conversion in finished goods and used 39.355 MT raw materials of Bihar State Pharmaceutical & Chemical Development Corporation Ltd. for their own benefit. It was alleged that accused had cheated the Bihar State Pharmaceutical & Chemical Development Corporation Ltd. in tune of Rs.19, 98,954.54 as on 20.5.92 by committing criminal breach of trust.
Accordingly, the informant alleged that all the Directors, including the petitioner had committed cognizable offences and, as such, an F.I.R. was registered for the offences under Sections 406 and 420 of the Indian Penal Code.
3. After completion of investigation and collecting the materials , police submitted chargesheet against all the accused and the learned Addl. Chief Judicial Magistrate by the impugned order, i.e. order dated 5.4.2000 took cognizance of offences under Sections 420 and 406 of the Indian Penal Code and directed for summoning the accused persons.
4. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 7.9.2001, the informant was permitted to be added as Opp.Party no.2 and notice was directed to be issued to Opp.Party no.2. In the meanwhile, it was directed that no coercive step shall be taken against the petitioner. On 11.4.2002, the case was admitted for hearing and during the pendency of this application, it was directed that interim order dated 7.9.2001 shall continue. However, on 18/7/2003, an Interlocutory Application vide I.A.No.453 of 2003 for modifying the interim order was allowed and it was directed that during the pendency of the application further proceedings in Tr.No.1103 of 2000, arising out of Kotwali P.S. Case No.82 of 1998, pending in the Court of Sri 4 Panchanan Sharma, Judicial Magistrate, 1st Class, Patna shall remain stayed. The order of stay is still continuing.
5. Sri Rajiv Kumar Verma, learned Senior Counsel appearing on behalf of the petitioner, while challenging the impugned order as well as entire criminal proceeding submits that the petitioner has incorrectly been made accused by the informant. It was emphatically stated that the petitioner was not associated with the D.D. Plastic, against whom there is allegation of committing fraud. It was argued that the petitioner was a transporter and, as such, he was not required to be made an accused in the present case and in a mechanical manner, he was arrayed as accused. It was further submitted that even for the time being if it is assumed that the petitioner was associated with the D.D.Plastic, no criminal offence is made out. According to Sri Verma, learned Senior Counsel appearing on behalf of the petitioner, it was a dispute in relation to accountancy and reconciliation. Learned Senior Counsel for the petitioner further submits that even for the claim, arbitration proceeding was already conducted and the Arbitrator has passed an award of Rs. 9 lacs and odd to the Corporation and entire issue has already been set at rest. While filing supplementary affidavit, the petitioner has further contended that even in the enclosure with the F.I.R., some interpolation was made by the informant to make out a case. Learned Senior Counsel for the petitioner submits that Annexure-6 is the photo copy of the original minutes of meeting dated 18.4.1995. It was argued that while enclosing a copy of the same along with the F.I.R., the informant had made interpolation so far as details of supply of raw materials dated 27.4.1991 at paragraph-5 is concerned. It was submitted that 2500 was added by the informant at internal page-2 of the minute dated 18.4.1995. In sum and substance, Sri Rajiv Kumar Verma, learned Senior 5 Counsel for the petitioner has submitted that neither the petitioner was associated in any manner with the present case nor any criminal offence is made out on the basis of the First Information Report and, accordingly, it has been prayed to quash the entire criminal proceeding as well as the impugned order of cognizance.
6. Sri A.M.P.Mehta, learned Addl.Public Prosecutor has vehemently opposed the prayer of the petitioner. It was submitted by Sri Mehta, learned Addl. Public Prosecutor that it is a case of misappropriation of public money to the tune of Rs.19 Lacs. It was submitted that after registration of the F.I.R. , the police thoroughly investigated the case and after collecting sufficient materials , chargesheet was submitted against all the F.I.R. named accused persons. So far as the present petitioner is concerned, it was submitted that the petitioner had acted as active Director of D.D. Plastic Products Pvt. Ltd., against whom there is allegation of misappropriation of Government fund. It was submitted that at the initial stage in a criminal proceeding, this Court may not interfere that too while exercising power under Section 482 of the Code of Criminal Procedure , which is to be exercised in exceptional cases.
7. Besides hearing learned counsel for the parties, I have also perused the materials available on record, particularly, the F.I.R. From the First Information Report, the Court is satisfied that specific case is made out. So far as the stand taken by Sri Rajiv Kumar Verma, learned Senior Counsel for the petitioner regarding the fact that the petitioner was not a Director of D.D. Plastic Products Pvt. Ltd. is concerned, this Court is of the opinion that this stand is itself demolished on the basis of the enclosure to the First Information Report, i.e. minutes of the proceeding dated 18.4.1995. Copy of the same has also been brought on record by the petitioner by filing a 6 supplementary affidavit dated 9.8.2010. In the supplementary affidavit, a new ground has been taken by the petitioner that in the minute of the proceeding, which was enclosed with the F.I.R., some interpolation was made by the informant if it is compared with Annexure-6 to the supplementary affidavit. So far as this allegation is concerned without looking into the original document this Court cannot record any finding in either way. This Court is required to examine as to whether there is prima face case or not. Moreover, this is the duty of the concerned Court, where chargesheet has been submitted and the learned Magistrate has passed the impugned order after perusing the materials available on record including the case diary and chargesheet. Time without number, it has been held that power under Section 482 of the Code of Criminal Procedure is to be exercised sparingly and in exceptional cases. In a case reported in AIR 1992 SC 604(State of Haryana Vs. Bhajanlal) this proposition has been reiterated. At this juncture, it would be appropriate to quote paragraph 109 of the said case, which is as follows:
"109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
8. After going through the materials available on record, the Court is of the opinion that the learned Magistrate while passing the impugned order of cognizance has committed no error. The petitioner has not made out an exceptional case, which can be put in the category of exceptional cases 7 warranting exercise of power under Section 482 of the Code of Criminal Procedure.
9. Accordingly, I do not find any merit in the present petition and the petition stands rejected.
10. In view of rejection of the present petition, the order of stay stands automatically vacated.
Let a copy of this order be sent to the court below forthwith.
( Rakesh Kumar, J.) Patna High Court,Patna Dated : the 12th August,2010 Nawal Kishore Singh/ N.A.F.R.