CRIMINAL MISCELLANIOUS No.37898 OF 2005 (IN THE MATTER OF AN APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE) 1. BRANCH MANAGER, LIC.OF INDIA, GAYA BRANCH-I, P.S. CIVIL LINE, DISTRICT GAYA, THROUGH. VIJAY KUMAR SINGH, S/O SRI KANHAIYA SINGH 2. NAVIN PRAKASH SINHA, S/O SRI MATHURA PRASAD SINHA, SENIOR DIVISIONAL MANAGER, LIC OF INDIA, PATNA DIVISIONAL OFFICE, MAZAHRUL HAQUE PATH, PATNA – 1. 3. ANANDI PRASAD, SON OF SHRI DAROGI PRASAD, MANAGER (LEGAL & HOUSING PROPERTY FINANACE DEPARTMENT), LIC OF INDIA, PATNA DIVISIONAL OFFICE, MAZAHRUL HAQUE PATH, PATNA – 1. 4. BANSHIDHAR SINGH, SON OF BALRAM SINGH, ASSISTANT (LEGAL & HOUSING PROPERTY FINANCE DEPARTMENT), PATNA DIVISIONAL OFFICE, MAZAHRUL HAQUE PATH, PATNA – 1. 5. MURARI SAHAY VERMA, SON OF LATE S.S. VERMA, EX-MANAGER (LEGAL & HOUSING PROPERTY FINANCE DEPARTMENT), LIC OF INDIA, PATNA DIVISIONAL OFFICE, MAZAHRUL HAQUE PATH, PATNA – 1. ……..ACCUSED – PETITIONERS FOR THE PETITIONERS : MR. UMESH PRASAD SINGH, SR. ADVOCATE FOR THE O.P. NO. 2 : MR. JITENDRA KUMAR ROY, ADVOCATE FOR THE STATE : MR. ATUAL CHANDRA, A.P.P. VERSUS 1. THE STATE OF BIHAR 2. SARYU PRASAD, SON OF LATE RADHEY KRISHNA BHAGAT, RESIDENT OF MOHALLA DR. KISHORI MOHAN COMPLEX, P.S. RAMPUR, DISTRICT GAYA ……….COMPLAINANTS – OPPOSITE PARTY NO. 2 WITH CR. REV. No.132 OF 2006 1. NAVIN PRAKASH SINHA, SON OF SRI MATHURA PRASAD SINHA, SENIOR DIVISIONAL MANAGER, LIC OF INDIA, PATNA DIVISIONAL OFFICE, MAZAHRUL HAQUE PATH, PATNA – 1. 2. ANANDI PRASAD, SON OF SHRI DAROGI PRASAD, MANAGER (LEGAL & HOUSING PROPERTY FINANCE DEPARTMENT), LIC OF INDIA, PATNA DIVISIONAL OFFICE, MAZAHRUL HAQUE PATH, PATNA – 1. 3. BANSHIDHAR SINGH, ASSISTANT (LEGAL & HOUSING PROPERTY FINANCE DEPARTMENT), PATNA DIVISIONAL OFFICE, MAZAHRUL HAQUE PATH, PATNA-1. 4. MURARI SAHAY VERMA, SON OF LATE S.S. VERMA, EX-MANAGER (LEGAL & HOUSING PROPERTY FINANCE DEPARTMENT), LIC OF INDIA, PATNA DIVISIONAL - 2 - OFFICE, MAZAHRUL HAQUE PATH, PATNA – 1. ………PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. SARYU PRASAD, SON OF LATE RADHEY KRISHNA BHAGAT, RESIDENT OF MOHALLA DR. KISHORI MOHAN COMPLEX, P.S. RAMPUR, DISTRICT GAYA. ……..OPPOSITE PARTY NO. 2 FOR THE PETITIONERS : MR. UMESH PRASAD SINGH, SR. ADVOCATE FOR THE O.P. NO. 2 : MR. JITENDRA KUMAR ROY, ADVOCATE FOR THE STATE : MR. DAMODAR PRASAD TIWARY, A.P.P. * * * * * P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA * * * * * Akhilesh Chandra,J. Heard learned counsel for the petitioners, Additional Public Prosecutor for the State and Mr. Jitendra Kumar Roy, learned counsel for the opposite party no. 2. Since both these applications arising out of same case pending before the court below and only in the event of the earlier application decided in favour of the opposite party, any adjudication and finding on the point in issue arising in criminal revision shall be required. So, with the consent of the parties both the application are heard together and being - 3 - disposed of by this court as composite order. 2. Relevant facts of the applications is that opposite party no. 2, an holder of insurance policy issued from Life Insurance Corporation, Gaya Branch, (hereinafter referred as ‘Corporation’), obtained loan of Rs. 70,000/- from the corporation for the purpose of construction of house on execution of agreement entered into against his policy in response of sanction of Rs. 75,000/- for the purpose on his application for loan dated 26/05/1991. 3. A sum of Rs. 1,04,489.00/- was paid by complainant-opposite party no. 2 towards principal and interest etc. and as per corporation some more amount was lying due, so legal notice was issued on 10/01/2004 against complainant-opposite party no. 2 making such demands, stating details of the dues against the complainant. 4. The opposite party no. 2 lodged the complaint before the court below, stating that in the notice instead of loan amount of Rs. 70,000/-, it has been mentioned as Rs. 70,000/- & 75,000/- respectively totaling to Rs. 1,45,000/- and the payments made by the complainant has not been adjusted towards principal amount of loan - 4 - taken by him. In fact, according to the complainant, there remains nothing to be paid under the head of principal. It is also stated in Paragraph – 4 of the complaint petition that loan was advanced at interest of 14% or at the rate prevailing in commercial banks from time to time, thus, as submitted the rate of interest is floating one, but the calculation done is not proper. Further, it is stated that reply to the notice has also been send to the corporation, but in spite of waiting for a substantial long period nothing could be done, compelling the complainant to file the complaint apprehending that the money paid by him is to be misappropriated. 5. On filing of the complaint by impugned order dated 18/7/2005 cognizance was taken by Judicial Magistrate, Gaya as for offence under Section 406 of the Indian Penal Code and case was transferred for trial and disposal to the court of Shri Om Sagar, Judicial Magistrate, 1st Class, Gaya. 6. While assailing the impugned order, taking cognizance it is submitted by learned counsel for the petitioners that in violation of provision contemplated under - 5 - Section 200 of the Code of Criminal Procedure, complainant was not examined on solemn affirmation and on this ground alone impugned order is not sustainable. In support of the contention reliance has been placed on the Division Bench decision of this Court in a case of Sudama Singh V Kavindra Narain Singh, reported in 1973 (1) BBCJ IV- 19, where in after referring relevant provisions of Code of Criminal Procedure and decision of other court’s, it has been held in Paragraph – 7 “The issuing of the process therefore without the examination of the complainant on oath was in violation of law prescribed in Section 200 of the Code. The violation may not vitiate the trial, but it cannot be allowed to remain when it comes to the notice of this Court at the appropriate time as in this case.” The learned counsel for opposite party no. 2 initially tried to laid emphasis that the case comes in the Proviso – a of the Section 200 of the Code of Criminal Procedure, but subsequently concedes that the error occurred in the order, is curable and on that ground the trial cannot be vitiated. Learned Additional Public Prosecutor also is of same view. 7. Since it is now undisputed, taking into - 6 - consideration provision of Section 200 of the Code of Criminal Procedure, which reads as such:- “200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses – (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.” - 7 - And decision of this Court that while taking cognizance, the court below has committed an error, which is curable and not going to affect the merit of the case or trial if proceeded. Now, the question arises whether just for rectification of the error aforementioned case be remitted to the court below after quashing the impugned order or as contended by learned counsel for the petitioners that even if the error is ignored, no criminal offence is made out against the petitioners and complaint petition itself is not at all maintainable, so the same be quashed. It is further, contended that dispute between the parties is of civil nature. There is no allegation or averment in the complaint petition attracting any of the criminal offence including offence under Section 406 of the Indian Penal Code for which cognizance has been taken, admittedly, civil suit is going on between the corporation and complainant at the instance of the corporation. 8. Learned counsel for the opposite party no. 2 submits that offence is made out against the petitioners, who deprived the complainant the due benefits of reduction in the rate of interest by not interpreting properly, the terms of - 8 - agreement, especially no.3 – A, relating to applicable rate of interest. It is also stated that on receipt of legal notice, the complainant send reply, giving details of payment and prayed for proper allocation of the payments under suitable heads, but no heed was paid compelling opposite party no. 2 to initiate criminal proceeding, but at the same time, it is undisputed that before the court below at the relevant time copy of such reply of notice was not available. 9. Moreover, assuming for the argument, sake the submission made by learned counsel for the opposite party no. 2 is correct and as per terms of agreement entered into between opposite party no. 2 and Corporation, rate of interest was not being properly calculated (Fixed/Floating) which is the main rather only grievance of the complainant, the dispute appears to be related with matter of accounting after determining applicable mode of interest nothing more. 10. In case there is any error in accounting or even going to this extent that with respect to interpretation of any clause of agreement entered into between the parties, no criminal offence is made out. The clauses of agreement may properly be interpreted or adjudicated upon by a - 9 - competent Civil Court, but at the same time initiation of the criminal proceeding to achieve the purpose which can only be achieved by a Civil Court is not at all permissible under law. 11. The Supreme Court in a case of Inder Mohan Goswami & Ors. V. State of Uttaranchal & Ors., reported in 2007 (12) SCC 1, after discussing different decisions including the case of State of Haryana and Others Vs. Bhajan Lal and Others 1992 SUPP (1) SCC : 1992 SCC (cri) 426 and especially in paragraph 34 referring case of G. Sagar Suri and another Vs. State of U.P. and Others 2000 (2) SCC 636 has held that “this court observed that decision due and obligation of the Criminal Court to exercise a great deal of caution in issuing the process, particularly when matter are essentially of civil nature.” 12. In view of the findings that no criminal offence is made out and dispute between the parties is purely of civil nature and further taking into consideration the decision of Apex Court in a case of Uma Shankar Gopalika V. State of Bihar and Another, reported in 2005 - 10 - (10) SCC 336, permitting further to continue the proceeding before court below would amount to an abuse of process of Code and to prevent the same, it would be just an expedient to quash the complaint. Accordingly, it would be needless to send the matter before the court below for removal of irregularity committed at the very initial stage i.e. at the time of taking cognizance. 13. It would not be out of place to mention that before the court below, the petitioners prayed for exemption from personal appearance and filed petition under Section 205 of the Code of Criminal Procedure, but the prayer was refused by order dated 24.12.2005 passed in complaint case No. 976 of 2005 , Trial No. 1230 of 2005 by Sri Om Sagar, Judicial Magistrate, 1st Class, giving rise to Criminal Revision No. 132 of 2006 before this Court and as stated earlier since now the complaint and further proceeding itself are non-est as being quashed by this order. Propriety of the order of the court below under Section 205 of the Code of Criminal Procedure is not at all required to be adjudicated upon. 14. Accordingly, Criminal Miscellaneous No. - 11 - 37898 of 2005 is allowed, impugned order taking into consideration as well as the complaint petition both are hereby quashed and in the light of observations made above Criminal Revision No. 132 of 2006 stands disposed of, without affecting any right of the complainant to invoke jurisdiction of competent Civil Court/Legal Services Authority for redressal of his grievances if any, in accordance with law. Patna High Court Date: The 27th August, 2010 Praveen/- (Akhilesh Chandra,J.)