IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7297 of 2009 MANZOOR ALAM & ORS Versus THE STATE OF BIHAR & ANR For the petitioner : Mr. Sanjay Kr. Sharma, Advocate For the O.P. : Mr. Mukesh Kr. Rana, Advocate For the State : Mr. Ansarul Haque, A.P.P. ----------- 3. 16.12.2010 This is an application for quashing the order dated 21.11.2007 passed by Sri N.K. Tiwary, Judicial Magistrate Ist Class, Araria in Complaint Case no. 523C of 2007. By which summon has been ordered to be issued against the accused persons after taking cognizance under Sections 323, 379, 422 and 504 of the Indian Penal Code. Prosecution case has been alleged by the informant namely Md. Anis that the petitioner accused Manjar Alam is his brother-in-law (Jija), Sama Khatoon full (sister) or Lal Mohammad is (Dewar) of his sister they became on 15.09.2006 at Araria and demanded a loan of Rs.40,000/- with a promise to return the same after a month. It is further alleged that after a month the complainant sent his son for collecting the said amount of Rs. 40,000/- from the accused person which was given in lodge. It is alleged that the accused person asked the son of complainant to stay with them and filed a false case against the complainant and sent the complainant to jail by conspiracy so that the complainant may not demand 2 the said amount of Rs. 40,000/- It is further alleged that subsequently when the complainant demanded to return Rs. 40,000/- then the accused persons assaulted the complainant with slaps and fists and abuse and get a document executed at the point of pistol regarding the return of the said Rs. 40,000/- On the said complaint the complainant and his witnesses examined and of considering the statement of complainant and his witness summon was ordered to be issued after taking cognizance against the accused persons. The learned counsel for the petitioner submits that first part is for not releasing loan is not an offence and second party about sending jail in conspiracy is a vague general allegation and third part apparently absurd and improbable with mala fide to wreak vengeance and hence case file only with intention to harass and the learned Magistrate did not apply its mind to fact and circumstance of the case. The learned counsel for the State opposed the contention and allegation in the last part of complaint make out an offence is made out and it is opinion of the magistrate which requires to be prevail. However, having regard to the fat in respect of submission of the parties the question for consideration 3 whether the impugned order is sustainable. However, taking into consideration the allegation that it does not stand to reason why the accused person will send the complainant to jail under a conspiracy when the complainant has given loan of Rs.40,000/- and both the accused and complainant and so full sister of brother. The further allegation of assault by accused person to complainant by going from Purnea from Araria and got the signature on plain paper on mere asking to return the amount appears to be absurd and suffer from inherent improbable repugnant to normal common sense. However, it is admitted in the allegation that the accused person had filed a case prior to this case and in which complainant was sent to jail in that case. Hence it is apparent that accused person had filed a criminal case against the complainant prior to this case and complainant sent to jail to this case has been filed to pressurize the complainant and to spite vengeance. However, the learned Magistrate require to made an intelligent enquiry but under fact and circumstance it appears that the learned Magistrate took cognizance mechanically without due proper application of mind. Hence having regard to allegation itself appears to be absurd and repugnant to normal common sense further to suffer from mala fide to spite vengeance. Hence allowing the prosecution to continue is an abuse of the process of 4 the court and hence the impugned order taking cognizance is set aside and petition allowed. Amit ( Gopal Prasad, J.)