IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14699 of 2008 ASHOK KUMAR THAKUR, son of Nand Kishore Thakur, Branch Manager, Life Insurance Corporation of India, Begusarai, P.S. & District Begusarai. ………….Petitioner. Versus 1. THE STATE OF BIHAR. 2. Ram Sagar Singh, son of late Triveni Singh, resident of Professor Colony, Dinkar Nagar, Begusarai, P.S. & District Begusarai. ……….Opposite Parties. ----------- 3 21.01.2011 Heard learned senior counsel for the petitioner and learned counsel for the State. The petitioner filed the present application for quashing the order dated 29.01.2008 passed in Complaint Case No. 887(C) of 2006, whereby the learned Chief Judicial Magistrate, Begusarai, has taken cognizance under Section 504 of the Indian Penal Code against the petitioner and issued summons. Initially, the matter was heard on 22.01.2010 when the further proceedings pending before the learned Court below was stayed and notices were issued to O.P. No. 2. The office note dated 16.03.2010 reflects that notices were personally served to O.P. No. 2. None appears on behalf of the O.P. No.2. O.P. No. 2 filed Complaint No. 887(C) of 2006 on 29.05.2006. In para 5 of the complaint petition the complainant alleged that on 01.08.1995 the complainant intimated to the Divisional Office, Bhagalpur as well as 2 Branch Office, Begusarai of the L.I.C. for adjustment of the loan amount from the maturity amount of the Life Insurance Policy, but it was not done and O.P. No. 2 was abused and was forced to leave the office. It is also alleged that demand of some pecuniary advantage was also made by the accused. In pursuance to the complaint, the complainant, his son and other relatives were examined. Though during the enquiry the complainant and the witnesses improved their version by alleging demand of money and regarding the threats being given by the Branch Manager. Considering the aforesaid facts, the learned C.J.M., Begusarai, on 29.01.2008 took cognizance under Section 504 of the Indian Penal Code against the petitioner only whereas both the Branch Manager as well as Divisional Manager were made accused in the complaint. It is submitted by learned senior counsel that para 5 of the complaint does not reflect the specific accusation against any accused. Paragraph 5 of the complaint only reflects the date of two letters being transmitted by the O.P. No. 2 i.e. on 01.08.1995 to Divisional and Branch Manager, but it does not reflect as to who abused, threatened or demanded money for 3 adjustment of loan. It is also submitted that L.I.C. Branch Office, Begusarai sanctioned a loan of Rs. 65,000/- out of which Rs. 40,000/- was disbursed to the O.P. No. 2 in 1991, but after 1993 O.P. No. 2 became defaulter for recovery of loan L.I.C. filed Title Mortgage Suit No. 323 of 2004 before the learned Sub-Judge, Begusarai, hence, as a retaliatory measure the present complaint was filed. It is lastly urged by learned senior counsel for the petitioner that the punishment for the offence under Section 504 of the I.P.C. is two years whereas, the complaint was filed on 29.05.2006 but para 5 of the complaint reflects that some time in 1995 the petitioner was abused and threatened meaning thereby that the petitioner knew about the occurrence since 01.08.1995 hence cognizance has been taken after eleven years of the occurrence and thus the cognizance is barred under Section 468 of the Cr.P.C., though the main allegation is of 01.08.1995 but column 2 of the complaint suggests the date of occurrence as 24.05.2006 hence the order of cognizance cannot be treated as barred under Section 468 of the Cr.P.C. Learned counsel for the State Mr. Mehta, submits that during enquiry the witnesses have supported the accusation. From perusal of the record, it 4 appears that the O.P. No. 2 was loanee, since 1991 but he made default since 1993, when the mortgage suit was filed against him in 2004 then the present complaint was filed, which appears as a mala fide and retaliatory action of O.P. No. 2. as he has admitted that he received the notices of the mortgage suit prior to lodging of complaint. Hence the present case comes with para meters 5 and 7 of the seven broad parameters laid down by Apex Court for quashing Criminal Prosecution in case of State of Haryana & Ors Vrs. Ch. Bhagan Lal & Ors. reported in 1992 Suppl.(1)SCC 335. The parameters (5) and (7) are absolutely applicable to the present case which read as follows. “5…………….Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused.” “7……………Where criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted, with an ulterior motive for wreaking vengeance on the accused and with a view to spite due to private and 5 personal grudge.” Hence the present case appears to have been filed maliciously for wreaking vengeance since L.I.C. filed mortgage suit against O.P. No. 2. From the main accusation made in para 5 it appears that the alleged occurrence took place long back on 01.08.1995 and for that the complaint was lodged on 29.05.2006 which creates doubt about the bona fide of the accusations made by the complainant. The impugned order reflects that the order of cognizance has been passed on mere S.A. of the complainant and the inquiry witnesses. The complaint petition amply reflects that the dispute between the L.I.C. and the complainant was since long, which provided ample opportunity to learned C.J.M. to enquire about the filing of the Civil Suit, but learned C.J.M. confined himself to the accusation made in the present complaint petition. Such conduct of the courts has been deprecated by the Apex Court in the case of Pepsi Foods Ltd. & Another Vrs. Special Judicial Magistrate & Others reported in 1998(5) SCC 749. Para 28 reads as follows. “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant 6 has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” Learned senior counsel has also relied upon the Judgment of the Apex Court in a case of Manoj 7 Mahabir Pd. Khetan Vrs. Ram Gopal Poddar and Ors. reported in 2010(10)SCC 673,, extract of para 12 reads as follow. “……….We reiterate that when the Criminal Court looks into the complaint it has to do so with open mind”. Hence in view of the aforesaid decision this Court comes to the conclusion that the complaint was filed maliciously as retaliatory measure and on the basis of the accusation levelled in the complaint, no case under Section 504 is made out. This Court feels that had the Magistrate questioned the complaint regarding the entire dispute with L.I.C. of India, then the learned Magistrate would have reached to a different conclusion. Hence, the impugned order of cognizance dated 29.01.2008 and entire prosecution of Complaint Case no. 887(C) of 2006 are hereby quashed. Bhardwaj/- ( Dinesh Kumar Singh, J.)