Patna High Court - Orders
B.P. Singh & Anr. vs The State Of Bihar & Anr on 22 September, 2014
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.44855 of 2011
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1. B.P. Singh S/O Late Ram Sabad Singh At Present Chief Manager State
Bank Of Ondia, Narkatiyaganj, District- West Champaran.
2. Subhashish Chakarborty S/O Late Sukhmar Chakarborty At Present Field
Officer, State Bank Of India, Narkatiyaganj, District- West Champaran
(Accused ) .... Petitioners
Versus
1. The State Of Bihar
2. Dr. Ezaz Ahmad S/O Nooruddin Hassan Resident Of - Mahuwan, P.S.-
Shikarpur, District- West Champaran At Present Resident Of Purani Bazar,
Narkatiyaganj, West Champaran .... Opposite Partys
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Appearance :
For the Petitioner : Mr. K.K. Sinha, Adv.
For the State : Mr. Atun Chandra APP
For O.P. No. 2 : Mr. Brij Kishore Mishra, Adv.
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
7 22-09-2014This is a petition to quash the order, dated 14.08.2011, passed by Sri N.P. Singh, Judicial Magistrate, 1st Class, Bettiah, in Complaint Case No. 185C of 2011, Trial No. 1904 of 2011 by which the process have been ordered to be issued after taking cognizance holding that a prima facie case made out against the petitioners for offence under Sections 420 and 504/34 of the Penal Code.
The prosecution case, as alleged in the complaint case, filed by complainant, Dr. Ejaz Ahmad, that the complainant is M.B.B.S. doctor having his clinic in Purani Bazar, Narkatiyaganj, Bettiah. He received information on 23.07.2003 through letter of the General Manager, Muzaffarpur Zonal Office, State Bank of India, regarding sanctioning of loan under the Doctor Plus Scheme. The complainant went to Narkatiyaganj Branch of the State Bank of India where loan was sanctioned under Doctor Plus Scheme to the extent of rupees three lakhs and fifty thousand. He produced required papers to the then Branch Manager, accused no. 4, in the complaint petition, Vinay Kumar Srivastava, but said Vinay Kumar Srivastava demanded rupees fifty thousand for allotment of loan. The complainant did not pay the said amount, as demanded. It is, further, alleged that the complainant was vexed by asking for unwanted papers and when the complainant produced all the papers, then, accused no. 4, Vinay Kumar Patna High Court Cr.Misc. No.44855 of 2011 (7) dt.01-09-2014 2/9 Srivastava, abused the complainant, but, the complainant restrained himself else there may have been apprehension of breach of piece. The, further, case is that the said accused no. 4, Vinay Kumar Srivastava, asked the complainant that if he wants to take loan for house, then, he can take loan under the normal housing scheme after mortgaging the land. So instead of providing loan under Doctor Plus Scheme, the loan was granted after mortgaging the loan. It is, further stated that on 26.08.2004, first installment of the said land worth rupees one lakh and twenty five thousand was released and the last installment of loan amount to the extent of rupees one lakh was given on 28.09.2004. Further, case of the prosecution is that the complainant used to pay the loan amount, as per his convenience. It is, further, alleged that accused no. 2, Pappu Singh, was the broker of the Bank. On 14.03.2007, said Pappu Singh came to the clinic of the complainant and disclosed that the complainant has vilated the payment schedule and caused irregularity in payment of the loan and his name is going to be published in the newspaper and if the name of complainant is published in the newspaper, then, he will suffer his prestige, which will be lowered in society, and since he is the person from Bank and can stop the publication of his name in newspaper and demanded rupees fifty thousand for not publishing his name in the newspaper and it is alleged that said Pappu Singh took rupees fifty thousand by threatening or terrorizing him. It is, further, alleged that on 12.01.2011 at about 01.00 p.m. accused persons came in the clinic of the complainant and dragged him and his patients from the clinic to vacate the clinic. When the complainant and the persons, present in the clinic, protested, then, the accused persons disclosed that if the complainant did not pay rupees five lakhs twenty three thousand five hundred and sixteen within two hours, then, they will seal the clinic and will take the complainant to the head office after arresting him. The complainant anyhow arranged rupees five lakhs twenty three thousand five hundred and sixteen and paid the amount to accused no. 1, B.P. Singh, the then Branch Manager, Patna High Court Cr.Misc. No.44855 of 2011 (7) dt.01-09-2014 3/9 State Bank of India, Narkatiyaganj, Bettiah, who is the petitioner. It is, further, alleged that the accused persons showing the forged interest and terrorizing the complainant under pretext to auction sale his land, took rupees one lakh more than the required amount. It is, further, alleged that instead of providing him loan under Doctor Plus Scheme has provided loan under Housing Scheme and has grabbed. It has, further, been alleged that the loan was required to be paid in ten years whereas they in defiance to the terms and rules realized the amount and when the complainant asked for a no dues certificate, then, Bank showed amount of rupees four lakhs twenty five thousand six hundred and sixty six and given the no dues certificate.
On the complaint, the complainant was examined on solemn affirmation and after examination of the complainant and witnesses, process have been ordered to be issued after taking cognizance that a prima facie case is made out under Sections 420 and 504/34 of the Penal Code.
The learned counsel for the petitioners submits that in the entire complaint petition there is no specific allegation against the petitioners and, further, even taking the allegation as true on the face value of the complaint petition, no offence is made out. It has, further, been contended that admittedly the complainant took loan from the State Bank of India, after mortgaging the land and executed the memorandum of the agreement to the term of the Bank and Bank disbursed the loan sanctioned is also accepted by the petitioners and after sanctioning of the loan, the loan amount was disbursed in the year 2004, till the disbursement of loan there is no allegation against the petitioners, who are accused nos. 1 and 3 to the complaint petition. However, the petitioners accept that the complainant was paying the loan amount as per his convenience. The complainant suppressed the fact that he was not paying the loan amount as per schedule of the repayment and, hence, became the defaulter and the amount of loan exceeded, as the interest added with it. So petitioner no. 1 took step under the Securitization and Reconstruction of Financial Assets and Patna High Court Cr.Misc. No.44855 of 2011 (7) dt.01-09-2014 4/9 Enforcement of Security Interest Act, 2002, for realization of loan. However, the only allegation against the petitioners that they came in the clinic on 12.01.2011 and there is vague allegation that the petitioners came, dragged and asked the complainant to pay rupees five lakhs twenty three thousand five hundred and sixteen within two hours otherwise the clinic will be sealed and then the complainant paid the amount to petitioner no. 1 and, further, has accepted that when the complainant demanded no dues certificate, then, the payment was shown to the tune of rupees four lakhs twenty three thousand six hundred and sixty six. However, the complainant has suppressed the material facts that after taking loan he did not deposit the loan amount as per repayment schedule and he became defaulter and loan amount exceeded for which the Bank took steps for repayment of loan under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, by filing a complaint and after due notice published in the newspaper and police force was allotted along with the Magistrate for recovery of loan or taking possession of the land and the documents have been filed, which are Annexure 3 to 8, memorandum of term loan, agreement for housing loan executed by the complainant, Dr. Ejaz Ahmad, the statement of the loan account regarding default in payment causing the increase in loan amount as interest added to it, the notice issued and published in the newspaper and, further, the order for execution of taking possession for non-payment and the allotment of police force for taking possession, if loan amount not paid that document on the face value, itself, is apparently in the nature of document of sterling quality to be translated into evidence.
The learned counsel for the respondent-complainant, however, appeared in the case and did not challenge the statement, averment or the papers filed by the accused persons, but, contended that the accused persons came along with the police force and tried to dispossess and the Magistrate after taking into consideration the statement of the complainant and his witnesses Patna High Court Cr.Misc. No.44855 of 2011 (7) dt.01-09-2014 5/9 found a prima facie case and this Court, at this stage, is not required to embark on the enquiry of the Court.
However, taking into consideration the respective submissions, the question for consideration whether the Court in exercise of power under Section 482 of the Criminal Procedure Code is required to interfere with the order taking cognizance. However, it is well settled that power under Section 482 of the Criminal Procedure Code is exception and not a rule to give effect an order under this Court or to prevent the abuse of the process of the Court or to secure the end of justice, while exercising the power the Court shall not function as the Court of appeal or revision, however, the jurisdiction under Section 482 of the Criminal Procedure Code is exercise sparingly to do exdebitio justitiae to do real and to prevent the abuse of continuity of injustice and in course such injustice the Court has pounce to prevent such abuse. Hence, if the Court finds and it justifies that initiation or even continuation of a proceeding amounts to abuse of the process of the Court, then, the ends of justice demand to quash the proceeding.
It well settled that the Court at the stage taking cognizance and framing of charge is not required to look into the explanation or even the paper filed by accused in their defence and only material to be looked into is the fact or the material produces by prosecution during enquiry and the accused has no say at that stage, however, it is well settled that in the interest of justice in exception circumstance foreign exigency and formidable compulsion justifies, then, in the exercise of power under Section 482 of the Criminal Procedure Code invoke inherent jurisdiction can look into those documents, which are of unimpeachable character and can be legally translated into relevant evidence. It is well decided in decision reported in (1994 (4) S.C.C., 142 Meenakshi Bala Vrs. Sudhir Kumar) and this view has, further, confirmed in decision reported in 2005 (1) S.C.C. 496 (District Registrar and Collector, Hyderabad & Anr. Vrs. Canara Bank & Anr.).
Patna High Court Cr.Misc. No.44855 of 2011 (7) dt.01-09-2014 6/9It is also well settled that the power exercised under Section 482 of the Criminal Procedure Code is required to sparingly exercise with caution taking into consideration the entire conspectus of the case, which is to be used sparingly and in exceptional circumstance to prevent the abuse of process of the Court. The legal position is well settled. The test for exercising the inherent jurisdiction is when taking the entire allegation on the face value of it true whether make out an offence or whether the allegation made suffers from inherent improbability and is manifestly absurd or repayment to normal common sense and, further whether the complaint has been filed with oblique purpose and malafide intention to wreak vengeance to spit on the face of the accused has been well settled in Bhajanlal's Case reported in 1992(4) S.C.C., 335.
Now coming to the facts and circumstances of the case and the allegation made, it is apparent from the complaint itself that the complainant applied for loan and took a loan after mortgaging his land, but, in the complaint case he has twisted the fact and instead of accepting that he became defaulter in repayment of the loan as per the schedule agreed due to which the loan amount exceeded much more than original loan taken and then the Bank's authority proceeded action against him for realizing the amount under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Though the complainant accepted that he was paying the loan at his convenience. He suppressed the fact that due to his being a defaulter in repayment of the loan the action was taken against him by the Bank and regarding the notice, issued to him and published in the newspaper rather he twisted the fact that one people came to demand rupees fifty thousand for not publishing his name in the newspaper. It is quite absurd that a person will pay rupees fifty thousand for not publishing his name in the newspaper in form of notice for being defaulter regarding the loan having been taken.
It is, further, alleged that on 12.01.2011 the accused Patna High Court Cr.Misc. No.44855 of 2011 (7) dt.01-09-2014 7/9 persons came and tried to drag the complainant and his patients from his clinic for illegally snatching and realized rupees five lakhs twenty three thousand five hundred and sixteen by cheque and the argument advanced by the learned counsel for the complainant that the money was snatched and taken more than what was due. However, it is inherently improbable and manifestly absurd that any person will come to snatch or forcibly take the amount by force in the form of cheque. However, the document has been filed and even a copy of the cheque issued to the tune of rupees five lakh and odd on 12.01.2011 has been annexed with the supplementary affidavit to show that the payment made by the complainant vide cheque and the photo copy of the cheque, dated 12.01.2011, has been annexed as Annexure 14 in the supplementary affidavit filed by the petitioners, which is the document of admitted and undisputed character by which the loan amount of the Bank was realized in the action taken under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in presence of all the police force and Magistrate and the excess amount was repaid in the account of the complainant.
However, taking into consideration the entire facts and circumstances and material, the allegation that accused persons came, dragged the complainant and his patients and realized rupees five lakhs and odd by cheque, there is no mention that he was a defaulter in the repayment of the loan and the action being taken under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and on the date of occurrence the cheque was given in presence of the police force and Magistrate, who have been deputed with the official of Bank for realization of the loan amount He has suppressed this fact and the payment of money by cheque under an order of the authority of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, for which the Collector authorized to take possession of mortgaged property, if amount not paid by deputing Patna High Court Cr.Misc. No.44855 of 2011 (7) dt.01-09-2014 8/9 the police force. It is totally absurd that a Bank's Manager will go to snatch money and to commit an offence under Section 420 of the Penal Code after order passed in a proceeding under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, with deputation of the police force with the Magistrate for vacating the mortgaged premises or realizing the amount and if the amount paid in cheque to commit an offence under Section 420 of the Penal Code or to cheat by taking money through cheque. When the money paid by cheque against the loan the rest amount repaid the account.
The allegation, itself, not only absurd, but even taking on the material fact neither any offence made out under Section 504 of the Penal Code nor an offence made out under Section 420 of the Penal Code and, moreover, the complaint has apparently filed the complaint with malafide intention to take vengeance to harass and by filing the complaint is exercise the jurisdiction of the Court as an instrument of oppression and needless harassment. However, from the nature of allegation the Magistrate exercised the power, issued the process without due diligence and non- application of mind. The Magistrate while exercising power to issue summon after taking cognizance required to exercise his discretion with all due diligence to see and by circumspect taking into consideration the facts and circumstances before issuing process else it would be an instrument in the hand of private complainant to harass any person and delegation.
Taking into consideration the entire facts and circumstance, it is apparent from the face that allegation made in the facts and circumstances do not make out an offence under Section 420 of the Penal Code as there is neither any inducement to deliver any property nor delivery of property in consequence of the said inducement rather the amount realized in due process of law in pursuance of the order passed under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, with deputation of Magistrate and police force duly appointed for the same. However, the property has been Patna High Court Cr.Misc. No.44855 of 2011 (7) dt.01-09-2014 9/9 given only and the cheque has been issued against the legal dues of loan, hence, it can not be said either any inducement was made or the property was given to any inducement nor under the facts and circumstances Section 504 of the Penal Code is made out rather taking into consideration the whole circumspect of the case, it is apparent that the complaint has been filed with malafide and ulterior motive to harass and the complainant was filed as counter blast of the action taken by the Bank's authority for realization of the amount in their official capacity and the complaint has been filed is after thought to rope-in the petitioners on account of their action for realizing the Bank's loan, hence, allowing the prosecution to continue will be an abuse of the process of the Court.
The order taking cognizance and the entire criminal prosecution against the petitioners is hereby quashed and the petition is allowed.
(Gopal Prasad, J) SA/-
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