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Jharkhand High Court

Ajay Poddar vs The State Of Jharkhand on 23 April, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                             IN THE HIGH COURT OF JHARKHAND, RANCHI
                                      Cr.M.P. No. 1003 of 2020
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                           Ajay Poddar                            .... Petitioner
                                              --       Versus    --
                      1. The State of Jharkhand
                      2. Manisha Saha                       .... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. R.S. Mazumdar, Sr. Advocate For the State :- Mr. Shailesh Kumar Sinha, APP For the OP No.2 :- Mr. Chandrajeet Mukherjee, Advocate

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08/23.04.2024 Heard the learned senior counsel for the petitioner, learned counsel for the respondent State and the learned counsel for the Opposite Party No.2.

2. The prayer in the petition is made for quashing the entire criminal proceeding dated 07.02.2020 arising out of the protest- cum-complaint Case No.2538 of 2018 pending in the Court of learned S.D.J.M., Ranchi.

3. The protest-cum-complaint case was filed alleging therein that the complainant, namely, Manisha Saha, on 28th May, 2010 was married to Kumar Mithilesh who since 2000 is engaged in the business of fabrication works.

It is stated that Rashmi Poddar who happens to be the wife of accused Ajay Poddar sometime in the year 2007 contacted complaints husband for supply of grills and other fabrication work for the ongoing extension construction of her house and during these interaction

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Rashmi Poddar realizing the high business repute and complainant's husband close contacts with the elite persons of the society, Rashmi Poddar with ill-intention established friendly family relationship with the complainant's husband. Subsequently, Rashmi Poddar introduced the accused Ajay Poddar as her elder brother and pretended herself to be unmarried and at the same time presented herself to be unmarried and at the same time presented herself to be a master in Rekie Therapy.

It is also alleged that the complainant's husband not knowing the ill-intention of the accused and his wife upon being approached by Rashmi and Ajay Poddar convinced the contacts of the complainant's husband to get Rekie therapy done by Rashmi Poddar and thus helped Rashmi Poddar to establish her name in the field of Rekie Therapy by providing her clients.

It is further alleged that the accused with intention to cheat, as per plan, banking on the friendly relationship, from time to time started taking friendly financial help from complainant's husband and diligently returned the same within time and thus gained trust of the complainant's husband.

It is further alleged in the petition that in the year 2009-10, the accused visited complainant's husband and said that builder Ashok Gahlot was supplied with tiles and marble by the accused for his ongoing residential building project but due to financial crisis the builder is unable to repay the said due amount of the accused and has offered

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a flat on the ongoing project of his at almost the cost value to which the accused is unable to agree as his business capital is blocked and the same is effecting his business and at the same time lured the complainant's husband to pay to the accused an amount of Rs. 13,70,000/- against which the accused will get Flat No. 203 C of 1270 Sq. Ft. at "Sunaina" Apartment behind Tagore Hill, P.S. Bariyatu, Morabadi, district - Ranchi registered in favour of the complainant's husband. The complainant's husband unaware of the evil design of the accused, by various installment paid a total sum of Rs. 13,70,000/- in cash to the accused and the said proposed flat was registered jointly in the name of the complainant's husband and his brother Kumar Nitesh but the possession for some or the other reason was never handed over.

It is also alleged that after marriage of complainant, she too became familiar with Rashmi Poddar and Ajay Poddar and both side as family friends were in visiting terms as family to each other's house prior to and post marriage of the complainant.

Further alleged that the complainant's husband then came to know that the builder has sold the flat to complainant's husband and his brother which falls in the share of the land owner and for that the land owner has filed a Title Suit No. 197/2013 against complainant's husband and his brother.

Subsequently, it is alleged that the accused and his wife

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assured complainant and her husband to co-operate in getting the possession of the flat or in realization of the entire sum from said Ashok Gahlot and the complainant and her husband had no option but to accept their proposal of co-operation in the anticipation of amicable solution of the flat dispute.

Further Rashmi Poddar came out with a new scheme to cheat complainant's husband and she expressed her desire to complainant's husband to join the SAOGE Institute, Kolkata and Rashmi Poddar requested complainant's husband to provide a loan of Rs. 2,49,000/- as the business of the accused was running in loss which was duly paid by the complainant's husband. Subsequently, Rashmi Poddar influenced complainant's husband to do the same course at the same cost. The Rashmi Poddar also took Rs. 60,000/- for getting a Singing Bowl for complainant's husband but the same was never supplied with.

Subsequently, it was revealed that Rashmi Poddar was actually the wife of the accused Ajay Poddar which itself was shocking for the complainant and her husband.

In addition to that it was also revealed that for all the ongoing course at SAOGE Institute, maximum cost was Rs.60,000/- to Rs.70,000/- but Rashmi Poddar under conspiracy with her relatives who happened to be faculties of the said Institute duped the complainant's husband.

That it is also alleged the complainant's husband realizing being

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cheated by the accused and her wife started demanding back the money given as friendly loan and at the same time pursued for either getting back the aforesaid flat of his and its possession free from all encumbrances and or the money paid towards the same.

That it is also alleged in the complaint that the accused and his wife under a pre-planned conspiracy to avoid returning the aforesaid amounts of the complainant's husband, filed a false and fabricated case against the complainant's husband which was registered as Kotwali P.S. Case No.845 of 2015.

That on 28.10.2015, at about 07:30 PM, when the complainant was alone with her children, the accused came to the house of the complainant and asked and searched for complainant's husband.

Upon such query of the accused, complainant said that neither her husband nor any of the other family members are at home, on which the accused asked the complainant to open the gate as he pretended to say something to the complainant.

The unaware of the ill-intention and evil design of the accused, the complainant opened the gate on which the accused entered inside and upon being confirmed that except the children, no one was present in the house, the accused caught hold of the complainant and said "Tumhara pati bewkuf hai, agar tum mera baat manogi to tumhe rani bana denge" and in the process outraged the modesty by holding the objectionable parts of the complainant's body to which complainant

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when reacted, the accused forcefully pushed the complainant on the ground and started to forcefully create physical relationship on which the complainant raised halla and the accused presuming neighbors may gather, fled away snatching the gold chain from the neck of the complainant and also threatened of dire consequences and to implicate complainant and her family members in various false criminal cases. It is pertinent to mention herein that the complainant also realized and was confirmed that the accused had consumed alcohol and was in an intoxicated state.

That in the aforesaid manner the accused is guilty for the offences punishable under Sections 323/379/384 /389/354/354A/354B 406/ 420/ 506 of the Indian Penal Code and hence this complaint.

4. Mr. Mazumdar, learned senior counsel appearing for the petitioner submits that the petitioner and the husband of the complainant were in business term and they were engaged in the construction work. He submits that the wife of the present petitioner has lodged the case against the husband of the complainant being Kotwali P.S. Case No.845 of 2015, corresponding to G.R. No.6336 of 2015 registered under Sections 384, 376, 512 and 506 of the Indian Penal Code. He submits that in the said case the charge sheet was submitted on 27.12.2015 whereby the husband of the complainant namely Kumar Mithilesh was sent up for trial. He further submits that the husband of the complainant

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was arrested on 27.10.2015 and the Argora P.S. Case No.52 of 2015 was lodged on 28.10.2015 by the complainant against the petitioner under Sections 376 and 511 of IPC. He submits that Argora P.S. Case No.52 of 2015 was investigated by the police and the final form was submitted saying that the case is false in nature. He submits that vide order dated 06.01.2016 receiving of the final form was recorded and the informant was noticed. He further submits that on 25.04.2016 in spite of notice the informant has not appeared, the learned Court has pleased to accept the final form. According to him since the case was maliciously lodged against the petitioner, the petitioner filed the damage suit being Original Suit No.262 of 2017 before the Civil Judge Senior Division, Ranchi on 24.04.2017. He submits in the Argora P.S. Case No.52 of 2015, the protest petition was filed by the complainant on 03.05.2018 and thereafter the learned Court has been pleased to take cognizance by order dated 07.02.2020 under Sections 354 and 506 of the IPC. He further elaborates his argument by way of submitting that the case is maliciously lodged against the petitioner on the behest of the husband of the complainant. He submits that the husband of the complainant was arrested on 27.10.2015 wherein the protest petition has been lodged on 28.10.2015 the petitioner has gone to enquire about the husband of the complainant. On the point of malicious prosecution, he relied in the case of Vineet Kumar and

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Others Versus State of Uttar Pradesh and Another reported in (2017) 13 SCC 369 and he refers to para 31-36, 38, 39 and 41 which are quoted herein below.

31. The complainant alleges rape by the accused on 22-10-2015 at 7.30 p.m. at her house and alleges that on the same day she went to the police station but FIR was not registered. She states that after sending an application on 26-10-2015 to the SSP, she filed an application under Section 156(3) CrPC before the Magistrate. There is no medical report obtained by the complainant except medical report dated 20-11-2015. The IO on 7-11-2015 when asked the complainant to get medical examination done, the complainant and her husband refused. The incident having taken place on 22-10-2015 at 7.30 p.m. nothing was done by the complainant and her husband till 26-10-2015 when she alleges that the application was sent to SSP.

32. During investigation, the IO has recorded the statements of the brother of the complainant's husband as well as Smt Bina Vishnoi, the wife of the husband's brother who were residing in the same house and have categorically denied that any incident happened in their house. Both, in their statements and affidavits have condemned the complainant for lodging a false report.

33. The IO collected affidavits of several persons including affidavits of Nikesh Kumar and Smt Bina Vishnoi and on collecting the entire material and visiting the spot the IO had come to the conclusion that no such incident took place and submitted a final report dated 29-11-2015. On 29-11-2015 itself, the IO has submitted another report for prosecution of the complainant under

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Section 182 CrPC for giving false information to the police.

34. After submission of final report and submissions of report under Section 182 CrPC dated 29-11-2015 the complainant filed a protest petition on 7- 1-2016.

35. It is true that in the statement under Section 164 CrPC, the complainant repeated her allegation. The complainant has also recorded her age in the statement as 47 years.

36. The Magistrate in allowing the protest petition only considered the submission made by the State while summoning the accused in para 6 which is to the following effect:

"6. In compliance with the order passed by the Hon'ble High Court and from the perusal of evidence and entire case diary, this Court comes to the conclusion that the complaint is required to be registered as police complaint and there are sufficient grounds to summon the accused Vinit Kumar, Sonu and Nitendra for their trial under Sections 376-D, 323 and 352 of the Penal Code, 1860."

38. There was sufficient material on record to indicate that there were financial transactions between the accused and the complainant, her husband and son. On dishonour of cheques issued by the complainant's husband and son, proceedings under Section 138 of the Negotiable Instruments Act were already initiated by the accused. All family members of the complainant were living in the same house. The brother of the complainant's husband and his wife, in their statements before the IO have admitted monetary

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transactions of his brother with the accused. The statements before the IO of both Nikesh Kumar and Smt Bina Vishnoi have already been extracted above, which were part of the case diary and was material which ought to have been looked into which was submitted by the IO in the final report.

39. The fact is that no medical examination was got done on the date of incident or even on the next day or on 7-11-2015, when the IO asked the complainant and her husband to get done the medical examination. Subsequently it was done on 20-11-2015, which was wholly irrelevant. Apart from bald assertions made by the complainant that all the accused have raped her, there was nothing which could have led the courts to form an opinion that the present case is a fit case of prosecution which ought to be launched. We are conscious that the statement given by the prosecutrix/complainant under Section 164 CrPC is not to be lightly brushed away but the statement was required to be considered along with antecedents, facts and circumstances as noted above.

41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 :

1992 SCC (Cri) 426] . Judicial process is a solemn

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proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , which is to the following effect: (SCC p. 379, para

102) "102. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.

Relying on the above judgment, Mr. Mazumdar, learned senior counsel submits that the case is maliciously lodged against

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the petitioner and in view of that the entire criminal proceeding may kindly be quashed.

5. Learned counsel appearing for the State submits that the police has investigated the matter, submitted the final form and the petitioner was not sent up for trial, however, the learned Court has been pleased to take cognizance on the protest petition filed by the complainant.

6. Mr. Mukherjee, learned counsel appearing for the opposite party No.2 submits that opposite party No.2 has not received any notice and only after receiving the notice of the original suit instituted by the petitioner, it came to the knowledge of the opposite party No.2 about accepting of the final form and thereafter the protest petition has been filed. He submits that once the protest petition is filed, the learned Court has taken the recourse under Section 200 of Cr.P.C. and after looking into the solemn affirmation, enquiring witnesses have been pleased to take cognizance. He submits that in view of that there is no illegality in the order taking cognizance.

7. In view of the above submission, learned counsel for the parties, the Court has gone through the materials on record, it is an admitted position that Argora P.S. Case No.845 of 2015 was lodged by the wife of the petitioner on 27.10.2015 against the husband of the complainant in which investigation was conducted by the police

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and the husband of the complainant was sent up for trial by charge sheet dated 27.12.2015 in that case the husband of the complainant was taken into custody on 27.10.2015. On the very next date Argora P.S. Case No.52 of 2015 was lodged on 28.10.2015 by the complainant under Sections 376 and 511 of the IPC, the said case was investigated by the police and final form was submitted saying that falsely the case has been instituted. The final form was received by the learned Court on 06.01.2016 notice was issued upon the informant by order dated 25.04.2016 the final form was accepted. The petitioner instituted the original Suit No.262 of 2017 on 24.04.2017 wherein the protest petition in the present case was filed on 03.05.2018 and the learned Court has been pleased to take cognizance on 07.02.2020.

8. In this background the Court is required to find out as to whether the case is maliciously lodged against the petitioner or not? In the protest petition at paragraph No.06, it has been stated that on 28.10.2015 the petitioner has gone to the house of the complainant to enquire about the husband of the complainant wherein the facts remained that the husband of the complaint was in custody on 27.10.2015 in a case lodged by the wife of the petitioner which itself suggests that Argora P.S. Case No.52 of 2015 was registered by the complainant maliciously after lodging of the case by the wife of the petitioner on 27.10.2015 wherein on the

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next date the case was registered at the behest of the complainant and the said case is said to be false in the investigation by the police. Now-a-days, process of Court is sought to be abused by a person with some oblique motive. The Court is required to thwart the attempt at the very threshold and the Court cannot permit the prosecution to go on only because in the solemn affirmation and two of the enquiring witnesses have alleged something against the petitioner when the original Suit No.262 of 2017 was instituted by the petitioner, thereafter the complaint-cum-protest petition was filed after accepting of the final form after two years. The filing of the case on the second day of institution of the case on behalf of the wife of the petitioner which was found to be untrue, it appears that this criminal proceeding is maliciously attended with mala fide and proceeding is maliciously instituted with an ulterior motive and in view of that the case of the petitioner is coming in category 7 of paragraph 102 in the judgment of Hon'ble Supreme Court in the case of State of Haryana and Others v. Bhajan Lal and Others reported in 1992 (Supp.) (1) SCC 335 (supra).

9. Further, if a malicious prosecution is being filed against any person every care are being made in drafting of the FIR and complaint so that the ingredients of relevant sections may be made out and if such a situation is there, the High Court is having more responsibility to look into the facts, so that any innocent person may

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not be prosecuted in a criminal proceeding and for that the Court is required to read the things in between the line. Now-a-days Section 376 of IPC is being used as a tool to implicate the innocent person in such proceeding and it appears that this is one of the case which has been maliciously lodged against the petitioner.

9. In view of the above facts, reasons and analysis, the entire criminal proceeding arising out of the protest-cum-complaint Case No.2538 of 2018 pending in the Court of learned S.D.J.M., Ranchi including the order taking cognizance are quashed.

10. This petition is allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Sangam/ AFR

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