IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6591 of 2009 1. Ravi Shankar Mishra, son of Late Chandrika Mishra, Area Manager, L.I.C. Housing Finance Ltd., Office at Jeevan Prakash Bhawan, Fraser Road, Patna, presently Working as Manager (Pr.1R)(DM) L.I.C. of India at Bhagalpur, Patna, Divisional Office, Bhagalpur. 2. Indralay Rai @ Indronil Roy, Area Manager, L.I.C. Housing Finance Ltd., Jeevan Prakash Bhawan, Fraser Road, Patna. ……….Petitioners. Versus 1. The State of Bihar. 2. Niranjan Singh, son of Late Babulal Singh, resident of Village- Salempur Dumra (Raja Bazar), P.S. Shastri Nagar, P.O. B.V. College, District- Patna. ….Complainant-Opp.Parties No.2. For the petitioners :- Mr. Rajeev Ranjan Prasad, Advocate. Mr. Manish Kumr Singh, Advocate. Mr. Raghwendra Kumar Singh, Advocate. For the O.P. :- Mr. Rajesh Singh, Advocate. Mr. Pawan Kumar, Advocate. For the State :- Mr. Jharkhandi Upadhyay. ----------- 3. 10.12.2010. Heard. This criminal miscellaneous petition has been filed for quashing the order dated 08. 11. 2007, passed in Complaint Case No. 3602 C of 2005 by which summons has been ordered to be issued to the petitioners after taking cognizance under Sections 406, 420, 384, 506 and 120 B of the Indian Penal Code. The prosecution as alleged in the complaint petition that Niranjan Singh and his brother Bijay Singh are owner of Survey Plot Nos. 205, 206, 207 and 208 2 under Khata No. 174, 170, 247 and 250, total area 13.61 kathas. With regard to the land, an agreement was entered between complainant and Lallan Sharma and Sudarshan Ojha, Managing Director and Chairman of M.S. Lal and Lal Engicon, a developer and builder for construction of multi storied building within three years and it was agreed to allot 32% shares to the land owners/complainant. Thereafter, it is alleged that after construction the said multi storied building Lallan Sharma in collusion and conspiracy with Sudarsan Ojha illegally kept some unknown persons as tenant against the terms of the contract. It is further alleged that said Lallan Sharma allotted four flats 301, 302, 303 and 304 and even issued letter of allotment in the name of Sujit Kumar, son of the complainant without completing the four flats and incomplete stage. When the complainant make request for completion of the said flat then it is alleged that Lallan Sharma began to talk for sale of said flats in which the complainant compelled to file a Title Suit No. 476 of 2003 and an injunction petition for restraining the defendants/builders from selling or encumbering the said flat and Lallan Sharma in his show cause took undertaking not to sale said flats and the learned Sub Judge II, Patna, vide his order dated 18. 12. 2003 3 restrained the defendants Lallan Sharma and others from alienating any flats. It is further alleged that inspite of said direction/order of learned Sub Judge, said Lallan sharma and other Managing Directors of Lal and Lal Engicon took loan from L.I.C. Housing Finance Ltd. Patna, on said flats. When the complainant learnt about the same, his son wrote letter to the L.I.C. seeking information about the same in which Shri Rajeev Ranjan Prasad, advocate of L.I.C. informed vide letter dated 19. 08.2004 and 21. 03. 2005 admitting that his client L.I.C. Housing Finance Ltd. had given loan to said Lallan Sharma and his Firm on Flat Nos. 201 to 205 and 301 to 303. Hence it is submitted that said Lallan Sharma and Area Manager of L.I.C. Housing Finance Ltd. in collusion and conspiracy of each other have cheated the complainant by putting in heavy loss. It is further alleged that the complainant has learnt that said Lallan Sharma has also sold said allotted flats of complainant Nos. 301, 302 and 303 to Sunil Kumar, Pramod Kumar Mishra and Sadanand Rai behind back and without any knowledge or information of the complainant. It has further been alleged that complainant on 08. 12. 2005 at about 11 A.M. met said Lallan Sharma in the said apartment and made protest and requested to cancel the said sale deed and to clear 4 the loan and also to fix door and windows, but said Lallan Sharma along with some unknown persons present there abused the complainant in filthy language and threatened with dire consequences to eliminate him and his son and demanded Rs. 5,00,000/- as Rangdari tax from the complainant by showing force. However, under this facts and circumstance in the complaint petition after taking cognizance by the impugned order dated 08. 11. 2007, learned Magistrate has issued summons against all seven accused persons including these petitioners after taking cognizance holding that offence is made under Sections 406, 420, 384, 506 and 120 B of the Indian Penal Code. Learned counsel for the petitioners contends that these two petitioners are Area Mangers of L.I.C. Housing Finance Ltd. and only allegation against them that L.I.C. Housing Finance Ltd. had given loan to said Lallan Sharma. However, no role has been attributed against them. However, allegation is that L.I.C. has granted loan to Lallan Sharma for those flats. Learned counsel for the petitioners further contends that in para 8 and 9 of the complaint petition are only relevant with regard to these petitioners where it has only been mentioned that Lallan Sharma and other Managing Directors took loan from L.I.C. Housing 5 Finance Ltd, on said flats. However, no allegation whatsoever as to what role actually played or commission of omission was made by them has not at all mentioned in the complaint petition. Learned counsel for the opposite party has further contends that in this case there was a civil suit and in the civil suit, an injunction order was passed and even after injunction of Title Suit No. 476 of 2003, restraining the defendant Lallan Sharma by order dated 18. 12. 2003, the defendants Lallan Sharma and others from alienating any flats. It is further submitted that even when there was order of injunction, L.I.C. Housing Finance Ltd. has granted loan. It has further been asserted that when three flats allotted by Lallan Sharma had not incumbent to LI.C. to grant loan when there is going a title suit of the flats and hence submits that that there was conspiracy between Lallan Sharma and L.I.C. Housing Finance Ltd. by which loan was granted on those flats and this amount cheating by these petitioners putting heavy loss to the complainant. On respective submissions of the parties, question for consideration whether even taking allegation on the face value of the complaint as true and whether it makes out offence to have support of order of taking cognizance and prosecution of the case. 6 However, having regard to the allegation for which cognizance has been taken under Sections 420, 406, 384, 506 and 120B of the Indian Penal Code is concerned, there is no allegation against the petitioners for offence under Sections 384 and 506 is made out as there is allegation against Lallan Sharma to have assaulted, abused and demanded rangdari. So far offence under Sections 420 and 406 is concerned there is no allegation that petitioners ever entrusted with money nor there is allegation that petitioners induced the complainant and by inducement the complainant ever did anything by delivering property to the petitioners and hence with regard to these two petitioners no offence under Section 406 and 420 is made out. It is alleged that there is conspiracy between Lallan Sharma and the petitioners, however, there is no material whatsoever neither any role attributed to the petitioners nor any act of commission of omission has been alleged and only allegation that loan has been given by the petitioners to Lallan Sharma for multi storied building and hence done forgery. However granting loan to Lallan Sharma does not make out an offence of forgery. Further there is no allegation whatsoever nor any act of commission or omission has been alleged against these petitioners in the complaint 7 to infer about any conspiracy or forgery. The conspiracy has been define that if a person did any illegal act or legal act by illegal means. However, there is no allegation whatsoever that any illegal act done or what legal act done by illegal means and hence by the act alleged against the petitioner no. 1, Area Manager, L.I.C. Housing Finance Ltd. is only that granted loan to Lallan Sharma is neither comes under definition of conspiracy nor can be said to be illegal act or legal act by illegal means. Hence taking into consideration the entire facts and circumstances, it is apparent that order summoning the accused by the learned Magistrate by impugned order has been passed mechanically without due application of mind as whatever allegation made even taken to be true on the face value of the complaint statement of witness even if accepted it does not make out an offence for issuing process after taking cognizance and hence impugned order of summoning the petitioners after taking cognizance is hereby set aside against these petitioners only and hence impugned order is set aside to that extent and the petition is allowed. . m.p. ( Gopal Prasad, J.)