Patna High Court - Orders
Jay Prakash Sao @ Jai Prakash Singh vs State Of Bihar & Anr on 7 November, 2008
Author: Abhijit Sinha
Bench: Abhijit Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.29213 of 2007
JAY PRAKASH SAO @ JAI PRAKASH SINGH, S/o Late Ram Chalitar Sah, R/o
Mohalla - Shankarwar Tola (Mokama) P.S. Mokama, District - Patna .... Petitioner
Versus
1. STATE OF BIHAR
2. Gopal Prasad, R/o Late Ramchandra Prasad, R/o Mokama Bazar,
Teraha Main Road Mokama, P.S. Mokama, District - Patna.
... Opp. Parties.
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3 7.11.2008Heard Sri D.N. Tiwary, learned counsel for the petitioners and Sri Jharkhandi Upadhaya, the learned A.P.P. for the State. Although a vakalatnama has been filed on behalf of the complainant, impleaded herein as O.P. No. 2, yet at the time of hearing of this application neither he nor any of his counsels is present.
The petitioner who has been arrayed as the sole accused in Complaint Case No. 443(C) of 2004 has filed this application for quashing of the entire criminal proceeding against him including the order dated 28.11.2006 passed therein by the learned Sub Divisional Judicial Magistrate, Barh, whereby he has taken cognizance of offence under section 422 I.P.C.
According to the complainant both he and the accused are businessmen and live in the same locality and thereby had developed and maintained cordial relationship. It is alleged that the accused had taken a loan of Rs. seven lac for purchasing onion, garlic and other spice items on an agreement that he would return Rs. 9,50,000/- by 28.2.2001 and a written agreement for the same was prepared on 16.11.2000. It is further alleged that the accused returned Rs. two lac on 4.12.2001 and further amount of Rs. five thousand on 1.3.2003 but thereafter he stopped payment. It is stated that when the -2- complainant went to the house of the accused demanding return of his balance amount, the accused threatened to kill him by pointing a pistol on his head and when the complainant went to the P.S. to lodge a case he was advised to file the complaint. It has been asserted in the complaint petition that the intention of the accused of threatening and abusing him was proof enough to show that he wanted to grab the entire balance amount which would fall within the ambit of offence under sections 420, 406 and 380 I.P.C. and that the complainant was entitled to get an amount of Rs. 23,44,464/- which included balance amount as also the interest accrued thereupon. It has been submitted by the learned counsel for the petitioner that it would be apparent from a perusal of the complaint petition that the dispute was in respect of recovery of money loaned out and would, therefore, fall within the ambit of civil nature and no criminal offence could be said to have been made out. In the circumstances taking cognizance of an offence under section 422 I.P.C. and continuing criminal prosecution would amount to be an abuse of the process of the Court.
Section 422 reads as follows:-
"Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to any other person from being made available according to law for payment of his debts or the debts of such other person shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both."
It would thus appear that three ingredients must be set out -3- to make out an offence under section 422 I.P.C. namely (i) there was some debt or demand against one; (ii) that the accused prevented any debt or demand due to himself or that the accused prevented any debt or demand to any person from being made available according to the law to the creditors; and (iii) the accused did so dishonestly or fraudulently .
From a perusal of the complaint petition it would appear that an agreement between the complainant and the accused had been scribed setting out the terms and conditions of the loan. It also appears that part payment of the amount of loan had been made but the balance amount along with interest accrued thereupon remained to be paid. Therefore, apparently the entire dispute lay over the recovery of money by the complainant from the accused. Notwithstanding the criminal trappings given to the cause of action the dispute remains a purely case of civil nature for which the remedy ought to have been sought in the Civil Court and the cloak of criminal action ought not to have been utilized in perusing and seeking remedy for civil wrongs. It is also difficult to fathom how an offence under section 422 I.P.C. can be said to have been made out from the allegation made in the complaint petition.
In the circumstances the taking of cognizance and the criminal prosecution of the petitioner would amount to be an abuse of the process of the Court which is unwarranted in law.
According to the impugned order is quashed and the application is allowed. The complainant - O.P. No. 2 will be at -4- liberty to seek his remedy before the appropriate forum.
(Abhijit Sinha, J.) Spd/-