Criminal Miscellaneous No.28387 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ 1. RAMA PRASAD, Manager, Bank of India, Naya, Bhagalpur town and District –Bhagalpur, presently posted at Bank of India, Regional Office,Bhagalpur, P.S. Kotwali, District-Bhagalpur 2. Shiv Shankar Bhagat, Clerk, Bank of India, Naya Bazar, Bhagalpur, Town and District-Bhagalpur ----------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Rajendra Mandal, Son of Baldeo Mandal, resident of Shankarpur, P.S.Nath Nagar, Bhagalpur, presently residing at Mohalla-Jhauva Kothi, Khanjarpur, P.S. Barari, Town and District- Bhagalpur ( Complainant in the court below) ------------ Opp.Parties. ------------- For the petitioners: Mr. Ajay Kumar Sinha, Advocate For the State : Mr. A.M.P.Mehta, A.P.P. For Opp.Party no.2: Miss. Divya Verma, Advocate. -------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure , have virtually prayed for quashing of the entire criminal prosecution against them in Complaint Case No.679 of 1996 , pending in the Court of Sri Prem Kumar, Judicial Magistrate, Bhagalpur . 2. Short fact of the case is that the complainant, who claims to be the nephew of one Maharaj Mandal, filed a complaint case vide Complaint Case No.679 of 1996 in the court of the learned Chief Judicial Magistrate, Bhagalpur disclosing therein that his 2 uncle Maharaj Mandal was cheated by accused persons, particularly accused nos. 1 to 5 of the complaint petition, who were relatives of the complainant as well as Maharaj Mandal. It was alleged that accused nos.1 to 5 of the complaint petition persuaded Maharaj Mandal to become guarantor for their loan. According to the complainant, five private accused persons had taken loan from the Bank and the uncle of the complainant was requested by the accused nos.1 to 5 to become guarantor. Subsequently, it was noticed by Maharaj Mandal that the loan for purchasing a tractor was sanctioned showing him as one of the borrowers instead of guarantor. Maharaj Mandal thereafter asked the complainant to file a complaint. Accordingly, complaint petition was filed for offences under Sections 420, 464, 465, 467, 471,34 of the Indian Penal Code. In support of the complaint, the complainant was examined and three witnesses supported the complainant’s case. However, the learned Magistrate by its order dated 5.9.1997 dismissed the complaint petition on the ground that there were no materials for issuing summons against the accused persons. The complaint was rejected under Section 203 of the Code of Criminal Procedure. 3. Aggrieved by the order of rejection of the complaint petition, the complainant filed a revision vide Cr.Revision No.618 of 1997. By order dated 30th May, 1998, the learned 7th Addl.Sessions Judge, Bhagalpur allowed the revision petition and remitted back the matter to the learned Chief Judicial Magistrate with specific direction to make further enquiry in the complaint petition filed by the 3 complainant. After the case was remitted back to the Magistrate’s court, the learned Magistrate by its order dated 14.7.1999 took cognizance of the offences under Sections 120B, 420, 465 and 467 of the Indian Penal Code. Aggrieved by the initiation of the prosecution the petitioners approached this Court by filing the present petition. On 17.2.2000 while issuing notice to Opp.Party no.2, this Court had directed that pending notice, further proceeding in Complaint Case No.679 of 1996 pending in the court of Judicial Magistrate, Bhagalpur, shall remain stayed. Subsequently on 22.6.2000 while admitting the case, this Court directed that during the pendency of this present application, the further proceedings will remain stayed and order of stay is still continuing. 4. Sri Ajay Kumar Sinha, learned counsel appearing on behalf of the petitioners submits that the petitioner no.1 was the Branch Manager, Bank of India, Bhagalpur and petitioner no.2 was clerk in his Bank and petitioners had got no role to play in the alleged occurrence. He further submits that being officers of the Bank, they were only required to see as to whether at the time of recommendation for disbursement of loan , the papers were correctly filled up or not and, accordingly, they processed the same for disbursement of loan and loan was sanctioned to the loanee. However, subsequently by filing the present complaint petition, a false allegation has been levelled against them that instead of making Maharaj Mandal as guarantor, he was shown as loanee by the Bank. He further submits that by the order dated 5.9.1997, the learned 4 Magistrate had rightly rejected the complaint petition under Section 203 of the Code of Criminal Procedure. He further submits that in any event the complainant of the present case was not having no locus to file the complaint petition since there was no material on record to show that the petitioner had participated in the crime. He further submits that the order of rejection of the complaint petition was challenged by the complainant vide Cr. Revision No.618 of 1997 and the 7th Addl.Sessions Judge incorrectly quashed the order of rejection of complaint petition. However, while setting aside the order , the Addl. learned Sessions Judge remitted back the matter to the learned Magistrate with specific direction to conduct further enquiry in the complaint case. It was argued that once the matter was remitted back to the learned Magistrate for conducting further enquiry , the learned Magistrate after the case was remitted back to him was required to conduct further enquiry and only thereafter he was entitled to take cognizance in the matter. However, by order dated 14.7.1999 , the learned Magistrate without conducting any enquiry on the same material took cognizance of the offence, for which the same Magistrate had rejected the complaint petition by its order dated 5.9.1997. Sri Sinha, learned counsel for the petitioners has further argued that in any event neither Maharaj Mandal had suffered any loss nor the Bank had gained anything in the present case and, as such, it cannot be said that any offence was committed by these two petitioners. On those grounds, he has prayed for quashing the entire prosecution in Complaint Case No.679 of 1996. 5 5. Miss Divya Verma , learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners. She submits that on the basis of materials available on the record, specific case is made out against the petitioners. She further submits that while exercising inherent power under Section 482 of the Code of Criminal Procedure, this Court may not interfere at the initial stage of criminal proceeding and, accordingly, she has prayed for rejection of the present petition. 6. I have also heard Mrs. Indu Bala Pandey, learned Addl.Public Prosecutor, who supports the stand of the learned counsel for Opp.Party no.2. 7. Besides hearing learned counsel for the parties, I have also examined the materials available on the record. From the complaint petition, it is evident that the person, who was aggrieved, i.e. Maharaj Mandal , has not come forward to make any claim or grievance before the Court. Neither he is the complainant in the present case nor was he examined as witness in the complaint case. The complainant has also not given any plausible explanation for non-production of Maharaj Mandal. The complainant has simply claimed to be the nephew of Maharaj Mandal. Moreover, from the materials available on the record, if for the time being it is assumed that Maharaj Mandal was cheated by the accused persons by way of showing him as borrower instead of guarantor , those materials are not sufficient to indicate that in any way Bank officials were involved in the case. Hardly, it can be said that Maharaj Mandal 6 cheated by his relatives, who have been made accused nos.1 to 5 in the complaint petition. 8. Be that as it may , without going into the merit of the case, the prosecution in the present case so far as petitioners are concerned is liable to be set aside solely on the ground that the learned Magistrate by the subsequent order i.e. order dated 14.7.1999 has illegally passed an order of cognizance . Once the case was remitted back by the revisional court by its order dated 30th May,1998 with specific direction to conduct further enquiry , without any further enquiry , the learned Magistrate was not authorised to take cognizance on the same materials , for which earlier complaint petition was rejected and, as such, I am of the view that in the present case order of cognizance dated 14.7.1999 is itself not sustainable in the eye of law and, accordingly the entire prosecution so far as petitioners of the present case are concerned are hereby set aside and the petition stand allowed. Accordingly, the petition stands allowed. Patna High Court,Patna Dated : the 29th April,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )