Jharkhand High Court
Vikas Kumar @ Vikash Kumar vs The State Of Jharkhand on 28 February, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2490 of 2017
Vikas Kumar @ Vikash Kumar, son of Shri Ram Niwas Pandey, resident of
104, 1st Floor, Sai Kripa Appt. Rani Bagan, P.O. Bariatu, P.S. Bariatu, District-
Ranchi, Jharkhand ...... Petitioners
Versus
1.The State of Jharkhand
2. Raju Gope ...... Opp. Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioner :Mr. Pandey Neeraj Rai. Advocate
Mr. Rohit Ranjan Sinha, Advocate
Mr. Akchansh Kishore, Advocate
Mr. Pradyuman Poddar, Advocate
For the State : Mr. Vijay Kumar Sinha, Advocate
For the O.P. No. 2 : Mr. Afaque Rashidi, Advocate
............
07/Dated: 28/02/2022 Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioner, Mr. Vijay Kumar Sinha, learned counsel for the State and Mr. Afaque Rashidi, learned counsel for the O.P. No.2.
2. The present petition has been filed for quashing of entire criminal proceeding in connection with Protest Cum Complaint Case No. 1892 of 2016 arising out of Koderma P.S. Case No. 0029 of 2016, corresponding to G.R. No. 185 of 2016, including order dated 19.07.2017 passed by the learned Judicial Magistrate, Ist Class, Koderma whereby cognizance has been taken under sections 467, 468, 471 of the I.P.C. against the petitioner, pending in the Court of learned Judicial Magistrate, Ist Class, Koderma.
3. F.I.R. has been lodged by the informant alleging therein that informant and his brother mortgaged their land for availing of ADOC loan of Rs. 13,50,000/- by M/s Rakesh Automobiles. The borrower was supposed to deposit the loan amount by 28.01.2014 in failure to which the bank sent a notice dated 29.05.2014 to the informant. It has been further alleged that the informant and owner of Rakesh Automobile namely, Sri Rakesh Kumar repaid the loan amount in June, 2014. The Branch Manager-petitioner allegedly 2 assured the informant that as soon as the loan is repaid, would be returned with his papers of land mortgaged, but despite repeated request made, the same was not returned to him. It is further alleged that when the informant personally met with the accused petitioner at his residence, he sought for a letter from Rakesh Automobiles pertaining to the return paper which was given by Rakesh Kumar on 06.08.2014 to the Bank with a copy to him. Thereafter, the petitioner told the informant that the said letter would be sent to Regional office of the Bank at Ranchi which would take some time. In the meanwhile the petitioner used to give wrong information and got his transferred done at Bariatu Road Branch, Ranchi. The informant received a notice under the SARFAESI Act upon which he came to know that the papers of the land had been used in an another loan of Rakesh Automobiles by defrauding and preparing forged documents by the accused persons.
4. Mr. Pandey Neeraj Rai, learned counsel for the petitioner submits that after due and thorough investigation, the Investigating Officer submitted final form being Final Form No. 111 of 2016 dated 31.05.2016 stating therein 'mistake of fact'. He further submits that pursuant to which notice has been issued to the informant and the informant dissatisfied with the final form filed Protest-cum-Complaint Case No. 1892 of 2016 dated 11.11.2016 and thereafter cognizance has been taken against the petitioner. He further submits that the petitioner is Branch Manager of Indian Overseas Bank, Koderma Branch. He further submits that the informant was guarantor in loan transaction and case was instituted against the loanee under the SARFAESI Act. After receiving notice in the case of SARFAESI Act, the informant challenged the said notice and filed application before the Debt Recovery Tribunal. He further submits that in the impugned order no reason has been assigned by the learned court below differing with the finding of the investigating officer. He further submits that proceeding of SARFAESI Act has been concluded in the finding the 3 Tribunal has opined that land in question is mortgaged property in favour of the bank.
5. Mr. Afaque Rashidi, learned counsel for the O.P. No. 2 submits that after going through S.A. of complainant and evidence of witnesses learned trial court has taken cognizance. He further submits that fraudulently loan amount has been sanctioned in the name of Rakesh Automobile. He further submits that inspite of sufficient material, chargesheet has not been submitted against the petitioner. He further submits that there is manipulation in the document in granting loan. Learned counsel for the O.P. No. 2 relied on judgment in the case of "Vishnu Kumar Tiwari Vs. State of Uttar Pradesh & Another"
reported in (2019) 8 SCC 27 wherein para 8, 14, 17 and 19 the Hon'ble Supreme Court has held as under:-
"8. The order passed by the Chief Judicial Magistrate shows that there is consideration of the protest petition. Neither the Chief Judicial Magistrate nor the Additional Sessions Judge have failed to apply the correct principles of law. In this regard, it is apposite to notice the following observations made in the impugned judgment1 of the High Court: (Shiv Shanker Ojha case, SCC OnLine All para 10) "10. In Pakhandu v. State of U.P., it is opined by the Court that in the case of final report the Magistrate has four options:
(1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.
(2) He may take cognizance under Section 190(1)(b) CrPC and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.
(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.
(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) CrPC upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 CrPC and thereafter whether complaint should be dismissed or process should be issued."
14. In Abhinandan Jha v. Dinesh Mishra, the question arose as to whether when a report is submitted that there is no material that any case is made out for sending the accused for trial, the Magistrate can direct the police to submit a charge-sheet. This Court took the view that the Magistrate cannot compel the police to change their opinion. However, it was held that the Magistrate is free to not accept such report and he may take suitable action. The Magistrate may direct further investigation under Section 156(3) of the Code. It was further held that it would be in a case where the Magistrate feels that the investigation is unsatisfactory or incomplete. It may be also in a case where there is scope for further investigation.
17. This Court in the course of its judgment in H.S. Bains, held as follows:
"6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence 4 and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200, Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."
19. In Mahesh Chand v. B. Janardhan Reddy, the appellant complainant had lodged report alleging commission of offences by the respondent. Subsequently, being dissatisfied with the investigation, he filed a criminal complaint in the court of the Magistrate. In the meantime, the investigating officer filed a final report finding that the controversy was of a civil nature. The appellant filed a protest petition. The final report was accepted by the Magistrate. The complaint case filed by the appellant was also closed. It became final. The appellant filed a third complaint, as it were, under Section 200 of the Code. On summons being issued, it was successfully questioned before the High Court. We may notice the following discussion by this Court profitably:
"12. There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised.
* * *
16. In Munilal Thakur case the Division Bench of the Patna High Court 5 was concerned with the question as to whether a Magistrate even after accepting final report filed by the police, can take cognizance of offence upon a complaint or the protest petition on same or similar allegations of fact; to which the answer was rendered in the affirmative.
17. The question which has arisen for consideration herein neither arose therein nor was canvassed.
18. In Jayashankar Mund case the Orissa High Court again did not have any occasion to consider the question raised herein. The Court held:
(SCC OnLine Ori para 14) '14. ... Even though a protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report and because the informant was not examined on solemn affirmation under Section 202 of the Code, thereby no illegality or prejudice was caused to the accused. If such a view is accepted and there is no reason why such a view should not be accepted, the necessary consequence in this particular case shall be that the protest petition which is of the nature of a complaint petition filed by the petitioner shall be in continuation and in respect of the case instituted and investigated by the vigilance police.'
19. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 CrPC may take cognizance of an offence and issue process if there is sufficient ground for proceeding. As held in Pramatha Nath Talukdar case second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."
(emphasis supplied)"
6. In view of the aforesaid facts and considering the submission of the learned counsel for the parties, the Court has gone through the material on record. Protest petition has been filed pursuant to final form submitted by the police showing 'mistake of facts'. This case is against the bank officer and this protest-cum-complaint petition has not been affidavited which was required requisites as per law laid down in the case of " Priyanka Srivastava & Another Vs. State of Uttar Pradesh & Others" reported in (2015) 6 SCC 287 wherein para 19, 28 and 30 the Hon'ble Supreme Court has held as under:-
"19. We have narrated the facts in detail as the present case, as we 6 find, exemplifies in enormous magnitude to take recourse to Section 156(3) CrPC, as if, it is a routine procedure. That apart, the proceedings initiated and the action taken by the authorities under the SARFAESI Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken, it needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation. It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one-time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bona fides. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made.
28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present Appellant 1. We are only stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) CrPC is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned.
29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle 7 the scores."
7. Recently, the Hon'ble Supreme Court has considered this aspect of the matter in the case of " Babu Venkatesh & Others Vs. State of Karnataka & Another" in Criminal Appeal No. 252 of 2022 decided on 18.02.2022 wherein it has been held that applications under section 156(3) Cr.P.C are to be supported by an affidavit duly sworn by the complainant. The persons would be deterred from casually invoking authority of the Magistrate under section 156(3) Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.
8. In the judgment relied by the learned counsel for the O.P. No. 2 the Hon'ble Supreme Court has considered the procedure followed by the magistrate pursuant to final police report. In the said judgment it has been categorically held that depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under section 190 (1) (b) Cr.P.C. for which there is no necessity to examine the witnesses under section 200 Cr.P.C. In protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case.
9. It is an admitted fact that the petitioner is Branch Manager of Indian Overseas Bank, Koderma Branch. Final form has been submitted stating 'mistake of facts' and on the basis of protest-cum-complaint cognizance has been taken. In the cognizance order no reason has been assigned by the 8 learned court differing with the opinion of the police. The learned court differed with the final form or new material brought by the O.P. No. 2 before the concerned court which compelled the court to take cognizance against the petitioner. It is well-within the jurisdiction of the learned Magistrate to take cognizance after the material as disclosed but in the order which is required to be disclosed what are the materials further brought before the court that compelled to take cognizance, this is lacking in the cognizance order. SARFAESI proceeding has already been instituted and after receiving notice under the said Act, the informant acted and filed a petition.
10. In view of the aforesaid facts, entire criminal proceeding in connection with Protest Cum Complaint Case No. 1892 of 2016 arising out of Koderma P.S. Case No. 0029 of 2016, corresponding to G.R. No. 185 of 2016, including order dated 19.07.2017 passed by the learned Judicial Magistrate, Ist Class, Koderma whereby cognizance has been taken under sections 467, 468, 471 of the I.P.C. against the petitioner, are hereby quashed.
11. The criminal miscellaneous petition stands allowed and disposed of.
( Sanjay Kumar Dwivedi, J.) Satyarthi/