IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48231 of 2008 1. Shiv Kumar Singh @ Sonu Singh, Son of Sri Shailendra Prasad Singh. 2. Shailendra Prasad Singh, Son of Sri Kamta Prasad Singh, resident of village+P.O.-Routa, P.S.-Sourbazar, District-Saharsa ……………..Petitioners. Versus 1. The State of Bihar. 2. Suman Kumar, Son of Sri Sachhidanand Prasad, resident of village-Chati Road, Ratanpur Chowk, P.S.-Begusarai, District-Begusarai, presently Indrepuri Road No. 1 Samanpura, P.S.-Shastrinagar, District-Patna. …………Opp. Parties. with Cr.Misc. No.34126 of 2007 1. Shiv Kumar Singh @ Sonu Singh, Son of Sri Shailendra Prasad Singh. 2. Shailendra Prasad Singh, Son of Sri Kamta Prasad Singh, resident of village+P.O.-Routa, P.S.-Sourbazar, District-Saharsa. ……………..Petitioners. Versus 1. The State of Bihar. 2. Suman Kumar, Son of Sri Sachhidanand Prasad, resident of village-Chati Road, Ratanpur Chowk, P.S.-Begusarai, District-Begusarai, presently Indrapuri Road No. 1 Samanpura, P.S.-Shastrinagar, District-Patna. …………Opp. Parties. ----------- For the petitioners : Mr. Divakar Prasad Singh, Adv. For the O.P. : Mr. Dinesh Kumar Singh, Sr. Adv. Mr. Rakesh Kumar, Adv. Mr. Umesh Pathak, Adv. For the State : Mr. Jharkhandi Upadhyaya, APP. 3/ 16.11.2009 Heard learned counsel for the petitioners and the State. Petitioners pray for quashing the order dated 25.01.2007 in Gardanibagh (Shastrinagar) P.S. Case No. 811/06 under Sections 406, 420/34 of the IPC. O.P No. 2 namely Shri Suman Kumar stated in his written report that petitioner No. 1 who is his friend asked a sum of Rs. 75,000/- for treatment of his mother. Petitioner No. 1 Shiv Kumar Singh assured that he would return the money by 02.07.2006, otherwise the informant would be free to take legal 2 recourse including recovery from his movable and immovable properties. The petitioner No. 1 signed the agreement in presence of his father who too singed as a witness. The petitioner No. 1 however did not return the money by that date. On the contrary he even refused to repay the same. The Opposite party No. 2 as such lodged the instant case against the petitioner No. 1 namely Shiv Kumar Singh as well as his father petitioner No.2. Counsel for the petitioner also relied on decisions reported in 2000 (2) PLJR 243 as well as 2000 (2) PLJR 52. The petitioners submit that the instant case is full of lies and, in fact, it is a counter blast to the complaints made by petitioner No. 1, against the informant before various authorities including S.P. Saharsa, Bihar Human Rights Commission and other constitutional authority. The petitioners have annexed photo copies of various complaints, made by him against O.P. No. 2. Mr. Dinesh Kumar Singh, learned Senior counsel appearing for the O.P. submits that the F.I.R. makes out a prima facie case against the accused petitioners and police after investigation has submitted charge sheet under Sections 420, 406 of the IPC. The Magistrate finding a prima facie case took cognizance and summoned the petitioners to face trial. It is further stated that at the stage of cognizance, this Court would not look into the defence and documents of the petitioners and in support of his contention learned counsel relied upon decision reported in 3 2004(1) SCC 961. He contends that merely because the acts of accused have civil liability it would not denude the complaint from filing a criminal case. In support of his contention learned counsel relies upon decisions reported in 2007(5) SCC 228, 2001(1) PLJR 463 as well as 2006 (1) PLJR 629. The Magistrate empowered to take cognizance under Section 190 (i) has only to see whether materials collected during the course of investigation makes out a prima facie case against the accused. In case the materials so collected, makes out a prima facie case, the Magistrate would be within his right to summons the accused persons. After perusal of the record, I find that petitioner No. 1 asked for the money and it was he who received the money. Furthermore on being reminded to repay the money, he refused to pay the same. However, there is no allegation that petitioner No. 2 asked the O.P. No. 2 to give money to his son petitioner No. 1. There is no allegation that petitioner No. 2 took part in the talks ever or assured that his son petitioner No. 1 would repay the money. The only averment made in the written report against the petitioner No. 2 is that the same was given in presence of petitioner No. 2 and the latter also signed as witness to this act. His signature on the document only points out that certain agreements took place between the parties. The same in no way can fasten any criminal liability or misuse on petitioner No. 2 in 4 absence of any allegations leveled in complaint. Even assuming the entire prosecution case, no offence is made out against the petitioner no.2 under Section 420 and 406 IPC, as such the impugned order summoning him to face trial u/s 406 & 420/34 IPC is hereby quashed. So far Petitioner No. 1 is concerned, I find that prosecution case makes out a prima facie case against him under Section 406, 420 of the IPC and as such the instant application, preferred on his behalf is dismissed. Counsel for O.P. has submitted that bail bond of the petitioner No. 1 has been cancelled and still he is evading appearance before the court. It was further submitted that the petitioner have filed another application for quashing the entire prosecution case without stating the entire facts. The petitioner No. 1 must submit himself to the process of law. The Cr. Misc. No. 34126 of 2007 preferred by petitioners for quashing the entire criminal prosecution is dismissed as infructuous in view of order passed in Cr. Misc. No. 48231/2008. Sanjeet/ (S.P. Singh, J.)