Patna High Court - Orders
Vinay Kumar Shrivastava vs The State Of Bihar & Anr. on 3 July, 2013
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.12756 of 2012
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1. Vinay Kumar Shrivastava S/O Late Jagnnath Prasad Srivastava, Retired
As Branch Manager, State Bank Of India, R/O Kamalnath Nagr, Bettiah,
District- West Champaran .... Petitioner
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 Parties
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Appearance :
For the Petitioner : M/S Kaushlendra Kr. Sinha, Sunil Kr. Sinha
& Anjani Kr. Mishra, Adv.
For the State : Mr. Suresh Prasad Singh, A.P.P.
For opposite party no.2: M/S B.N. Mishra, B.K. Mishra & S.N. Rai, Advs.
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
3 03-07-2013Heard the learned counsel for the petitioner, opposite party no. 2 and the State.
This is a petition for quashing the order, dated 18.08.2011, passed by Sri N.P. Singh, Judicial Magistrate, 1st Class, West Champaran at Bettiah, in Complaint Case No. 185(C) of 2011, by which the cognizance has been taken under Sections 420 and 504/34 of the Penal Code.
The prosecution case, as alleged in the complaint petition by the complainant, opposite party no. 2, an M.B.B.S. doctor that he applied for housing loan on the letter pad of Sri Arvind Priya, Assistant Managing Director, State Bank of India, Muzaffarour, on 23.07.2003 under Doctor Plus Scheme. The complainant was sanctioned loan of Rs.3,50,000/- under Doctor Plus Scheme. He gave the requisite papers to the accused persons. But, the petitioner, the then Branch Manager, demanded Rs.50,000/- as bribe for granting loan under that Scheme. The complainant refused to pay. Then the petitioner with ulterior Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 2/10 motive demanded irrelevant paper to harass and when the complainant protested then the accused-petitioner abused him. The complainant restrains himself else there would have been breach of peace. It is, further, alleged that latter the petitioner suggested to take general loan under housing scheme on mortgage of the land. Thus, instead of Doctor Plus Scheme, the loan was taken under general scheme on the mortgage of land. The first installment of loan was granted on 26.08.2004 of Rs.1,25,000/- and the last loan given on 28.09.2004 of Rs.1,00,000/-. The complainant went on paying the loan according to his convenience. It is, further alleged that accused no. 2 is Dalal of Bank. It is alleged that accused no. 2 came in the clinic of the complainant on 14.03.2007 and impressed that there is irregularity in repayment of loan and his name if required to be published in paper which may cause and effect his reputation and if he pay Rs.50,000/- then he will get his name not published in the paper and he took Rs.50,000/- by terrorizing him. It is, further, alleged that on 12.01.2011 at 01.00 p.m. the accused persons reached at the clinic of the complainant and started dragging him from the clinic and driving out the patient from the clinic and when the people present there protested then the accused persons threatened that if the amount of Rs.5,23,516/- is not paid within two hours then they will seal the clinic and took the complainant along with him. Then the complainant any how manages the amount and gave it to accused no. 1.
It is, further alleged that accused no. 1 by preparing of forged loan paper terrorize the complainant to effect his reputation took Rs.1,00,000/- in excess.
He has given general housing loan, but, taken the Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 3/10 interest of Doctor Plus Scheme. The Bank has given a no dues certificate of only Rs.4,23,066/-
On the complaint the complainant was examined on solemn affirmation and the witnesses were examined and then taking into consideration the statements the process have been issued after taking cognizance for offence under Sections 420, 504/34 of the Penal Code.
The learned counsel for the petitioner submits that allegation made in complaint petition even if taking on the face value does not make out an offence. The allegation made is patently absurd and inherently improbable and complaint has been filed malafidely with ulterior motive to wreck vengeance. It is stated that petitioner, who was the then Branch Manager in the year 2004 and 2005. the petitioner was transferred from Narkatiaganj in December, 2005. the allegation against the petitioner is that the petitioner demanded bribe in 2004 and the complainant was abused for protesting the demand, but, the petitioner restrained himself on abuse otherwise there may have been breach of peace, but, the complaint has been lodged after several years in the year 2011 after six years of alleged abuses itself indicates that the allegation are absurd and improbable without any reference to place and time of occurrence. It has, further, been submitted that the fact remains as admitted that complainant approached the Bank for loan in the year 2004 and it is admitted that loan was granted in three installments on 26.08.2004 of Rs.1,25,000/-, 8th September, 2004, Rs.1,25,000/- and on 28th September, 2004, Rs.1,00,000/-. However, it is asserted that he paid loan as per convenience and default in payment. As per the agreement the loan was to be paid by Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 4/10 monthly installment as per the agreement signed, but, the amount was not paid by monthly installment and, thus, committed breach of the terms and conditions. He paid only Rs.10,000/- on 31st August, 2005, and Rs.5,000/- on 30th April, 2006, Rs.50,000/- on 28th March, 2007, and, thus, loan amount mounted to Rs.4,48,184/- after application of interest as applied on 31 st July, 2007. So Bank issued notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, calling upon him and his guarantor to repay the liability within 60 days failing which Bank reserves the right to initiate such other actions and in response complainant paid Rs.73,275/- on different dates reducing the balance of Rs.4,63,959/- and against paid Rs.44,000/-. The copy of the statement account indicated the fact. Bank took stamp for publication of possession notice so paid Rs.50,000/- on 13th August, 2010, ultimately step taken under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and steps to take physical possession, Annexures 6 and 7, and during course of sealing the properties Dr. Ejaz Ahmad, paid Rs.5,23,000/- and the amount found excess Rs.16,622/- was credited in his account.
It is submitted that the fact mentioned is apparent from the record based on document of unimpeachable character and admitted fact that the complainant took the loan from Bank and the petitioner was person to issue the loan amount and the document filed apparently are account and process taken to realization of the amount taken on loan are of unimpeachable character of hurting quality to be looked into to counter the malicious complaint.
Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 5/10Hence, being aggrieved by the step taken by the Bank for realization of the dues loan amount under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the false case lodged against the petitioner is malicious with ulterior motive to wreck vengeance.
The learned counsel for the informant submits that the allegation made in the complaint makes out an offence and the delay ipso facto is no ground to quash a criminal proceeding when the complainant and his witnesses has supported the prosecution case and the accusation has prima facie been found to the satisfaction of the learned Magistrate. This Court can not embark on the enquiry by the Court below, hence, does not need interference.
However, taking into consideration the respective submissions, the question for consideration whether on the allegation made, makes out an offence and whether allegation suffers from absurdity and instituted with malicious intention to wreck vengeance and allowing the prosecution to continue is an abuse of the process of the Court requiring quashing the proceeding in the interest of justice.
However, reverting back to allegation and taking into consideration the fact that cognizance on the complaint has been taken under Sections 420 and 504/34 of the Penal Code. The question for consideration whether allegation made, makes out an offence under Sections 420 and 504/34 of the Penal Code. The allegation against the petitioner is that he demanded bribe in the year 2004 for granting loan under Doctor Plus Scheme while acting as Branch Manager of Narkatiaganj Branch of State Bank of India and when the complainant failed to pay the brine, then, Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 6/10 the petitioner abuse the complainant. It is, further, alleged that thereafter the petitioner was instrumental in not providing loan in Doctor Plus Scheme, but, he advised the petitioner to take loan on the mortgage of land. The loan was sanctioned and paid in the year 2005 while this petitioner was the Branch Manager. However, subsequently it is alleged that the money was realized in pretext that Bank staff demanded money and even sealed the clinic and realized the amount. However, it is admitted fact, as per the allegation in complainant that the petitioner took the loan from Bank. The document filed by the Bank is document are the accounts for taking loan and it's repayment filed as annexure are document of unimpeachable character to suggest that the petitioner made default in the payment of money and the Bank proceeded to realize the amount by proceeding under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The document filed are description of the dues and as per Bank account and the notices and steps taken for realization of the loan which are Annexures 4 to 8 are documents of unimpeachable character of sterling quality and the allegation of the petitioner in complaint also has admitted the loan taken and the petitioner being the Branch Manager, who granted him loan. The, further document shows the action taken for realization of loan and taking possession of the mortgaged property.
However, taking into allegation made in complaint that this petitioner while the Branch Manager demanded Rs.50,000/- for sanctioning loan under the Doctor Plus Scheme and when the complainant refused to pay the bribe then he abused in the year 2004-2005. However, the complaint has been filed in 2011 after Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 7/10 the petitioner having been defaulted for repayment of loan and the Bank authority took legal action for realizing the loan and succeeded to realize the loan by due process of law under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. However, the allegation against the petitioner is for demand of bribe and abuse for not paying the bribe and subsequently this petitioner himself gave him loan by mortgage of land, itself, belie the allegation. However, mere delay in lodging the case in 2011 for occurrence of 2004 and 2005 ipso facto is no ground for quashing, but, the complaint filed in 2011 with regard to an absurd allegation of abuse for not paying the bribe in 2005 is itself appears to be inherently improbable and manifestly absurd allegation, which has been alleged after the realization of loan by process of law also indicates that the allegation is malicious with ulterior motive to wreck vengeance.
However, taking into consideration the documents filed as Annexures 4 to 8 are the documents showing the accounts and steps taken for possession of mortgaged land for defiant in payment to realize the loan amount are documents of unimpeachable character. However, it is well settled that the Court at the stage of taking cognizance and framing of charge is not require to look into the defence of the accused of paper filed for their defence and only material to be looked into is the police paper filed by police or the material produced during enquiry under a complaint and accused has no say. However, it is well settled that in exceptional circumstance in rare cases where forensic exigencies and formidable compulsion justify, then, Court in exercise of the power under Section 482 invoked inherent Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 8/10 jurisdiction can look into those documents, which are of unimpeachable character and can be legally translated into relevant evidence (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.) Hence, it is well settled that the power under Section 482 of the Criminal Procedure Code are very wide, but, be exercised sparingly cautiously in exceptional circumstance to prevent the abuse of the process of the Court for advancement of justice. The legal position is well settled that when the prosecution at the initial stage is asked to be quashed the test to be applied whether allegation made are prima facie makes out an offence or not and the allegation suffer from inherent improbability and is manifestly absurd. It is also for the Court to taking into consideration any other special features whether it is expedient in the interest of justice to allow the prosecution to continue or the process of the Court has been used for oblique purpose to wreck vengeance and whether the case comes under any of the seven categories mentioned in Bhajanlal's Case 1992(4) S.C.C., 335 or not or any of the categories R.K. Kapor case.
It is well settled that the almost of the power under Section 482 of the Criminal Procedure Code is to do exdebitio justitiae to do real and substantial justice to present the abuse of the process of the Court.
Hence, taking into consideration the allegation made does not make out a case for offence under Sections 420 and 504 of the Penal Code against the petitioner. For an offence under Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 9/10 Section 420 of the Penal Code there must be and inducement and deception by any person fraudulently and dishonestly involving that person to deliver property. However, there is neither any allegation against the petitioner nor any deception nor delivery of property in consequence of deception. So far the offence under Section 504 of the Penal Code is concerned that the petitioner abused for non-payment of bribe, itself, does not cover the ingredient to make out a case for offence under Section 504 of the Penal Code. However, there is no assertion what the abuse was and only allegation that the petitioner abuse in the context for not paying the demand of bribe, itself, does not appear to be that the provocation was made for the purpose of breach of peace. More over, the complaint filed in 2011 for alleged abuse in 2005 after six years it indicated that allegation is absurd and inherently improbable. However, admittedly, the petitioner took loan from the Bank, the petitioner suppressed the fact about the default made by him in repayment of loan, cooked up a story that Bank authority realized the amount taken in loan fraudulently. However, the document filed by the petitioner shows that the petitioner had taken loan, he defaulted in repayment and the money realized from him by due process of law under a legal action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 The document relied are of unimpeachable character and reliance on these documents in the interest of justice to prevent the abuse of the Court is permitted at this stage to do exdebitio justitiae.
However, taking into consideration the allegation made does not makes out a case for offence under Sections 420 and 504 of the Penal Code. The allegation is inherently improbable and Patna High Court Cr.Misc. No.12756 of 2012 (3) dt.03-07-2013 10/10 manifestly absurd, based on suppression of material fact and the petition filed maliciously with ulterior motive to wreck vengeance and allowing the prosecution to continue is allowing the unscrupulous person to abuse the process of the Court is against the interest of justice.
Hence, taking into consideration the entire fact and circumstances of the case is abuse of the process of the Court and, then, the order taking cognizance and prosecution against the petitioner is hereby set aside and the petition is allowed.
(Gopal Prasad, J) SA/-