CRIMINAL MISCELLANEOUS No.5568 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ 1.SHRI UPENDRA NATH SINGH , Son of Late Kameshwar Prasad Singh, Branch Manager, Bihar State Financial Corporation , Patna 2. Sri Dileep Kumar Sinha, Son of Late Dr. Nityanand Prasad Sinha, Branch Manager, Bihar State Financial Corporation, Patna 3. Shri Shashi Sekhar, Son of Late Ram Rekha Singh, Deputy Manager, Bihar State Financial Corporation, Headquarters, B.S.F.C. Building, Frazer Road, Patna 4. Shri Anand Deo Kansyakar, Son of Late Saryu Prasad , Manager (P.D.L.), Bihar State Financial Corporation, B.S.F.C. Building, Frazer Road, Patna ----------- Petitioners Versus 1. THE STATE OF BIHAR 2. Shri Arvind KumarAwasthi, Son of Sri Vidya Bhusan Awasthi, Awasthi Bhawan, Belwarganj, Alamganj, Patna 800 007 ------------------------------ Opp.Parties. -------------- For the petitioners: Sri M. K.Thakur, Advocate For the State : Sri Amarendra Prasad, A.P.P. For Opp.Party no.2: None. ------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Four petitioners, who were at the relevant time Branch Manager, Dy. Branch Manager, Manager Recovery and Manager, P.D.L. in the Bihar State Financial Corporation, Patna , have approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding in Complaint Case No.C.A.No.603 of 1998 including an order dated 3.11.1998 passed by the learned Judicial Magistrate, Patna City in Complaint Case No.603 of 1998. By order dated 3.11.1998, the learned Magistrate has taken cognizance of offences under Sections 420, 406,120B of the Indian Penal Code 2 2. Short fact of the case is that Opp.Party no.2 claiming to be proprietor of “Executors and Traders” filed a complaint in the court of Addl.Chief Judicial Magistrate, Patna City, which was numbered as Complaint Case No.603 of 1998 against aforesaid four petitioners on an allegation of commission of offences under Section 420, 406 and 120B of the Indian Penal Code. It was disclosed in the complaint petition that the complainant was doing business of property developer and also as a middle man for sale and purchase of land in the name and style of “Executors and Traders”. The complainant was sole proprietor of the said firm. It was disclosed in the complaint petition that a company ,namely, M/S India Machinery Stores (P) Ltd., Kumrahar, Patna ( herein after referred to as “the Company”) had taken loan of Rs. 16.45 lacs on 31.3.1985 from the Bihar State Financial Corporation ( hereinafter referred to as “ B.S.F.C.”) and up to 28.2.1998, total outstanding along with interest had come to Rs.35,75,232.46. It was disclosed that the Company remained closed for about 10 years and was not in a position to repay the loan amount. The complainant entered into an agreement with the said company. As per terms of the agreement, the complainant took possession of the factory premises, prepared a lay out plan and started looking the intending purchasers. It has been disclosed that the complainant had paid the amount payable to the Company and undertaken to repay the loan of B.S.F.C. and, accordingly, the Managing Director of the Company executed an absolute registered power of Attorney in favour of the complainant. The complainant disclosed that he repaid Rs.28.43 Lacs against Rs.35, 75,232.46 to the B.S.F.C. through Bank Draft/ Bankers Cheque, out of which a sum of Rs. 21,21,000/- was paid up to 8.10.1998 vide Managing 3 Director of the said Company. It was disclosed in the complaint petition that on 17.10.1998, accused persons came to the factory premises and started creating nuisance. The complainant was threatened by accused persons regarding lodging of criminal case against him. It was alleged that accused persons were demanding illegal gratification of Rs.2, 00,000/- . However, the complainant was having only Rs.5000/- in his possession, which was forcibly taken by petitioner no.3. As per complaint petition, the occurrence had taken place on 17.10.1998 and thereafter the complainant went to lodge a police case. Since no case was lodged, the complaint petition was filed in the court of learned Addl.Chief Judicial Magistrate, Patna City. After conducting enquiry, the learned Magistrate vide its order dated 3.11.1998 took cognizance of offences under Sections 420, 406 and 120 B of the Indian Penal Code and directed for summoning the petitioners. 3. Aggrieved with the order of cognizance, four petitioners approached this Court by filing the present petition. On 5. 4.1999, while issuing notice to Opp.Party no.2, this Court directed that further proceeding in Comlaint Case No.603 of 1998 in the Court below shall remain stayed in the meantime. Subsequently, on 29.4.1999 after hearing both the parties, the petition was admitted for hearing. It was directed that till final disposal of this application interim order passed on 5.4.1999 will continue. The order of stay is still continuing. 4. Sri Mukesh Kumar Thakur, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the present complaint petition was filed maliciously and with an oblique motive. It was submitted that since the complainant failed to get 4 any relief in his favour from this Court in a writ petition, which was preferred by the complainant vide C.W.J.C.No.2793 of 1998, the present complaint was filed in retaliation. Learned counsel for the petitioners has submitted that for the Bihar State Financial Corporation, the complainant was an unknown person. It was submitted that agreement was entered in between B.S.F.C. and M/S Indian Machinery Stores (P) Ltd. and loan was accordingly provided to the said Company. Since loan was not cleared by the loanee, at subsequent stage the Managing Director of B.S.F.C. vide its order dated 18.3.1998 ordered to take over the possession of the said Company. The order dated 18.3.1998 passed by the Managing Director of B.S.F.C. was challenged by the complainant before this Court vide C.W.J.C.No.2973 of 1998. Sri Mukesh Kumar Thakur, learned counsel for the petitioners has referred to Annexure-3 to the petition, which is a copy of the writ petition. It has been submitted that in the writ petition, the complainant had mainly prayed for quashing of order dated 18.3.1998 issued by the Managing Director of B.S.F.C. to the Branch Manager directing him to enter upon the premises of the concern, namely, M/S India Machinery Stores (P) Ltd., Kumrahar and take over possession of the mortgaged assets of the said concern on behalf of B.S.F.C. In the case, a detailed counter affidavit was filed on behalf of the Corporation, wherein identity of the complainant, who was petitioner in the writ petition, was questioned. Initially, in absence of any counter affidavit, an interim order was passed. However, subsequently after the counter affidavit was filed on 1.5.1998, the interim order of stay was vacated. Learned counsel for the petitioners has also referred to Annexure-7 to the petition, which is a copy of the order dated 1.5.1998 passed in C.W.J.C.No.2793 of 1998. It has 5 further been submitted that against the vacation of the order of stay, the complainant (petitioner in the writ petition) preferred an appeal vide L.P.A.No. 664 of 1998, which was subsequently withdrawn and finally the writ petition, i.e. C.W.J.C.No.2793 of 1998 was also permitted to be withdrawn. Learned counsel for the petitioners has referred to Annexure-9 to the writ petition, i.e. order dated 11.1.1998 passed in C.W.J.C.No.2793 of 1998. Learned counsel for the petitioners has referred to the order specifically , which is as follows: “ After realizing the difficulty that the relief claimed in the writ petition can only be considered at the instance of Respondent nos.3 & 5, as prayed , learned counsel for the petitioners is permitted to withdraw the writ petition with a liberty to the Respondent nos.3 & 5 to approach the Corporation and/or this Court for appropriate relief relating to return of the documents executed by him, as the petitioners’ claim that petitioners have paid the entire amount of the dues of the Corporation through Respondent nos.3 & 5.” It has been submitted by Sri Thakur, learned counsel for the petitioners that even on perusal of the complaint petition, no offence under Sections 420, 406 and 120B of the Indian Penal Code is made out. Accordingly, it has been prayed to quash the order of cognizance as well as entire proceeding against the petitioners. 5. In this case, at the time of hearing, none appeared on behalf of Opp.Party no.2. 6. Sri Amrendra Prasad, learned Addl.Public Prosecutor has appeared on behalf of the State. 7. Besides hearing learned counsel for the petitioners as well as 6 the State, I have also perused the materials available on record. After going through the contents of the complaint petition as well as order of cognizance, which has been taken under Section 420,406 and 120B of the Indian Penal code, the court is satisfied that no offence is made out against the petitioners under Sections 420, 406 and 120B of the Indian Penal Code. Besides this, the material brought on record makes it clear that the present complaint was not filed fairly and honestly. The Court is of the opinion that the prosecution in the present complaint petition has been initiated maliciously and with oblique motive. Accordingly, with a view to prevent the abuse of the process of the court, the Court is of the opinion that it is a fit case for exercising inherent power under Section 482 of the Code of Criminal Procedure in favour of the petitioners. 8. Accordingly, the order of cognizance dated 3.11.1998 passed by the Judicial Magistrate, Patna City in Complaint Case No.603 of 1998 as well as entire criminal proceeding against the petitioners are hereby set aside and the petition stands allowed. Patna High Court, Patna Dated : the 28th October,2010 Nawal Kishore Singh/ N.A.F.R. (Rakesh Kumar, J.)