IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37152 of 2007 DEBU SAHNI, Son of Niras Sahni, R/o Vill-Jhilauriya, P.S. Kuseshwar Asthan, District- Darbhnaga ---- Petitioner Versus 1. THE STATE OF BIHAR 2. Sita Devi W/o Juwachh Mahto, R/o Vill- Samela, P.S.Kuseshwar Asthan, District –Darbhnaga --- Opp.Parties. ----------- For the petitioner : Mr. Shubhash Pandey, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party : Mr. Arjun Prasad No.2, Advocate. ------------- O R D E R 3 28-11-2008 The petitioner, whose prayer for discharge in connection with K.Asthan P.S. Case No.58 of 2003 was dismissed by order dated 24.4.2007 by Sri A.P. Gupta ,Judicial Magistrate, First Class, Biraul at Benipur, has prayed for the quashing thereof. One Sita Devi submitted complaint petition no.37 of 2003 before the learned Sub Divisional Judicial Magistrate, Biraul on 11.2.2003, which on being transmitted to the concerned Police Station under Section 156 (3) Cr.P.C. the instant K.Asthan P.S. Case came to be registered under Sections 467,468,471,420 and 386 I.P.C. The prosecution case is that the husband of the informant is blind since long and his younger brother and father had died and his mother is aged about 85 years. It has also been stated that the entire family property is joint and several litigations are pending in various courts including one in the court of the District Magistrate, Darbhnaga. It is said that accused no.1, Debu Sahni, petitioner herein, was a friend of her husband and by virtue thereof he usually went to Darbhanga for - 2 - making pairvi in the cases and taking advantage of the pitiable condition of the husband and mother-in-law of the informant and his friendship, he took their thumb impression on some blank-sheet of papers, which subsequently he converted into a power of attorney in his favour on 3.7.2002. When they got information about this nefarious act of the petitioner, the husband of the informant had sworn affidavit on 27.11.2002 declaring that the power of attorney executed in the name of the petitioner was an illegal document. It has further been alleged that on 10.2.2003, the petitioner arrived at the house of the informant and thereafter told the husband of the informant to go to Darbhanga with him as there was some urgent work to be done but the informant objected thereto, whereupon a verbal scuffle amongst them took place and in the evening of the same day, the petitioner and other accused came to the house of the informant and assaulted her by means of fists and also forcibly took her thumb impression at the threat of pistol. Although notice in the admission matter was duly served on Opp.Party no.2 yet she chose not to appear and contest this application. It has been submitted on behalf of the petitioner that it is clear from a bare perusal of the complaint petition that even if the allegations made therein are taken at their face value to be true, then even no offence can be said to have been made out against the petitioner as there is lack of the ingredients of the Sections alleged. It is submitted that the informant is a litigant lady and after taking the - 3 - full consideration amount the power of attorney had been executed by them in favour of the petitioner and notwithstanding the same with ulterior motive she lodged the instant false case. In this connection, it was sought to be submitted that the thumb impression of the executant was available on each page of the said power of attorney, which would only show that the power of attorney is a valid document and not a fabricated one. Even the Investigating Officer after holding due investigation though submitting a chargesheet had opined that the case had basically arisen out of civil dispute. It has also been submitted that it would be apparent that the instant case was a false one lodged against the accused petitioner to put pressure on him to resolve the civil cases existing inter se between the parties. As stated above, Opp.Party no.2 has not appeared to contest this application and, therefore, submissions advanced by the learned counsel for the petitioner remain unrebutted . Even otherwise from the recital in the complaint petition no offence whereunder cognizance has been taken appears to have been made out against the petitioner and the order refusing to discharge the petitioner appears to be unwarranted and an abuse of the process of the court. Accordingly, the impugned order so far as the petitioner is concerned is quashed and the application is allowed. NKS/- ( Abhijit Sinha, J )