Case Facts:
Criminal Miscellaneous No.5617 of 2010 =========================================================== Shashi Goenka W/O Amarnath Goenka R/O Mohalla- M.P. Dwivedi Road, P.S.- Kotwali, Distt.- Bhagalpur. .... .... PETITIONER. Versus 1. The State Of Bihar 2. Narayan Prasad Goenka S/O Late Laxmi Narayan Goenka R/O 4B, 903, Wispring, Palm, Lokhandwala, Township, Kandiwali, East Mumbai- 400101, Presently Residing At Mohalla- Chunihari Tola, R.N.Agrawal Road, P.S.- Kotwali, Distt.- Bhagalpur. .... .... OPPOSITE PARTIES. =========================================================== Appearance : For the Petitioner : Mr. Gautam Kejriwal, Advocate. For the State : Mr. Bipin Kumar, A.P.P. For the O.P. No.2 : Mr. Vivekanand Singh, Advocate. =========================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Petitioner has prayed for quashing of order dated 09-12-2009 passed by Chief Judicial Magistrate, Bhagalpur in Complaint Case No.2370 of 2002 (Narayan Prasad Goenka Vs. Amarnath Goenka & Anr.) whereby and where under she along with others has been summoned to face trial for an offence punishable under [STATUTE] . O.P. No.2 filed complaint petition before the learned Chief Judicial Magistrate alleging inter alia that he is son of late Chhedi Lal Goenka but he was taken in adoption by Late Laxmi Narayan Goenka, uncle of Late Chhedi Lal Goenka and accordingly he became entitled for half share in place of Late Laxmi Narayan Goenka, his adoptive father in the joint business being carried out by joint family of Late Chhedi Lal Goenka and Late Laxmi Narayan Goenka. It had further been disclosed that Late Chhedi Lal Goenka died leaving behind four sons Amarnath Goenka, Narayan Prasad Goenka (complainant), Vishnu Prasad, Krishna Kumar Goenka and two daughters, Shayma Agrawal, Parwati Kejriwal and widow Bimla Devi Goenka. Amarnath Goenka was entrusted to look after partnership firm “Style”. Patna High Court Cr.Misc. No.5617 of 2010 dt.25-01-2012 2 Complainant as well as Smt. Bimla Devi was partners and it was established in the year 1986. It had further been averred that without his knowledge, Late Chhedi Lal Goenka had partitioned the property amongst family members. In the aforesaid background, the accused persons in conspiracy to each other got the document prepared in their name relating to firm “Style” though in the Sale Tax Department as well as Income Tax Department, it continued with “Style” firm. No share was deducted in favour of complainant as well as Bimla Devi. The aforesaid event was known to him when he came on death of Late Chhedi Prasad Goenka on 19-12-2008. Thereafter, the other partners have executed power of attorney in his favour. In the aforesaid background he had served upon an advocate notice on 08-01-2009 as well as 10-01-2009 upon accused but accused no.1 instead of complying with the directions, filed Sanha and that shows the criminal intention of accused in getting the share of complainant misappropriated by means of creating forged and fabricated document. On the basis thereof, the learned Chief Judicial Magistrate proceeded to conduct an inquiry under Section 202 of the Cr.P.C. whereupon witnesses were examined and then by the order impugned summoned the petitioner including others resulting filing of instant petition. At an earlier occasion, it was argued on behalf of petitioner that learned Chief Judicial Magistrate has acted in haphazard manner for some extraneous consideration on account of which vide order dated 17-02-2010 a report was called for from the District and Sessions Judge which is available on the record. From perusal of the said report it is evident that only three cases that means to say Complaint Case No.2331 of 2009, 933/2009 and the present one 2370 of 2009 was taken up on priority basis by the court concerned and more particularly, instant complaint has been swifted in hurry only consuming three dates from the date of institution of order impugned. Contention on behalf of petitioner is that whatever allegation has been Patna High Court Cr.Misc. No.5617 of 2010 dt.25-01-2012 3 made in the complaint petition, all are palpably false and frivolous and the same never existed in its true sense. To support her plea, by way of supplementary affidavit filed Anexure-4 advocate notice dated 08-01-2008 and 4/A advocate notice dated 10-01- 2009 served upon Amarnath Goenka , accused no.1 on behalf of complainant wherein there is total absence of such kind of allegation whatever been alleged in the complaint petition. It has further been disclosed that from the advocate notice dated 10-01-2009, the complainant had himself admitted 1/6th share of the Amarnath Goenka, husband of petitioner in the property and the firm “Style” and further no allegation has been put against the petitioner in any manner so, the subsequent filing of complaint petition arraying petitioner as one of the accused is nothing but an outcome of malicious prosecution. Then submitted that even going through the complaint petition, it is evident that no allegation has been attributed against the petitioner save and except having her presence in the column of accused. Further submitted that during course of inquiry, also more particularly the complainant on S.A. failed to put any sort of allegation against the petitioner. Therefore, continuance of proceeding against the petitioner will be nothing but an abuse of the process of the court. At the other hand, the learned lawyer for O.P. No.2 has submitted that at the stage of summoning the accused, only prima facie material has to be seen. The satisfaction of the Magistrate at this score happens to be beyond the scrutiny of Hon’ble Court more particularly at the stage of Section 482 of the Cr.P.C. Then submitted that at this stage the Magistrate is not at all required to evaluate the evidence in such way as prescribed for scrutiny durin

Applicable IPC Section: 420

Statute Text:
Section 420 of the Indian Penal Code. Cheating and there by dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.