CRIMINAL MISCELLANIOUS NoS.47986, 47987, BOTH OF 2005 ******* In the matter of applications under Section 482 of the Code of Criminal Procedure. ******* IN BOTH CASES VINOD KUMAR DUDANI---------------PETITIONER Versus 1.THE STATE OF BIHAR 2.VIJAY KUMAR BYAHUT ------------OPP.PARTY ******* FOR THE PETITIONER : Mr.Purnendu Singh FOR OPP. PARTY NO.2 : M/S Upendra Prasad & Veena Kumari Jaiswal FOR THE STATE : Mr. Damodar Prasad Tiwary ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and Mr. Upendra Kumar for the opposite party, also perused Supplementary affidavit filed in Cr.Misc. no. 47986 of 2005 today and kept on record. 2. Since both the cases are, in fact, inter related and parties are also the same, hence heard together and with the consent of the learned counsels 2 being disposed of with this composite order. 3. The relevant facts in these two cases is that petitioner was posted at relevant time at Chapra as Assistant Commissioner, Sales Tax. 4. Opposite party no.2 filed one Complaint Case no. 728 of 2005 on 23rd July, 2005 for the offence under Sections 506, 387 and 388 of the Indian Penal Code against the petitioner stating therein that on 15th June, 2005 he called his father having business in the name and style Shanker Tea Store and on his arrival with one Om Prakash badly abused and threatened, demanded sum of rupees ten thousand causing great shock to the father of the petitioner as a result whereof just after seven days he left this world on 22nd June, 2005. Whole incident was not known to the complainant till 22nd July, 2005 when said Om Prakash narrated the story. During enquiry, statement of complainant was recorded followed by a few witnesses and court below, on consideration, took cognizance only for the offences under Section 506 of the Indian Penal Code giving rise to Cr.Misc. no. 47986 of 2005 seeking 3 quashing of the aforesaid order by Sri Vinay Prakash Tiwary, Judicial Magistrate, first class, Saran at Chapra. 5. Just almost a week before filing of the above complaint on 15th July, 2005 opposite party no.2 had already lodged Complaint Case no. 1647 of 2005 against the petitioner for the offences under Sections 448, 384 and 506/34 of the Indian Penal Code alleging that just in the previous evening, i.e., on 14th July, 2005 at about 5.00 P.M. petitioner with a few unknown arrived at the same shop, namely, Shanker Tea store, and started terrorizing the complainant and others and pressurizing to pay money in the name of VAT and also abusing the complainant causing loss of prestige besides mental shock etc. Information to higher authorities were also given but no heed was paid even by the Police. Hence, complaint was filed wherein also by the court of Sri R.K. Srivastava, Judicial Magistrate, on recording witnesses, the enquiry cognizance for the offence under Sections 379, 448 and 506 of the Indian Penal Code was taken giving rise to Cr.Misc. no. 47987 of 2005 seeking quashing. 4 6. It is an admitted fact that petitioner was Assistant Commissioner, Commercial Taxes, and arrived at the scene in the earlier complaint bearing no.1647 of 2005 filed on 15th July, 2005 in connection with Value Added Tax (VAT) and stating some sort of interference, non-co-operation and misbehavior etc. the petitioner himself got Chapra Town P.S. Case no. 152 of 2005 instituted against the complainant opposite party no.2 on 14th July, 2005 itself for the offences under Sections 353 and 504 of the Indian penal Code besides Sections 81(1) (a) and 81(3) (e) wherein after investigation charge sheet was submitted and cognizance has already been taken. 7. It would also not be out of place to mention here that during the period one week from 14th July, 2005 to 23rd July, 2005 opposite party no.2 got another complaint bearing no. 1683 of 2005 filed on 19th July, 2005 against the petitioner, by his brother Rajendra Kumar alleging almost similar fact which have been noticed by a Bench of this Court in Cr. Misc. no. 38771 of 2006 and vide order dated 13.3.2007 said complaint 5 and its proceeding was quashed. 8. My attention has also been drawn towards Division Bench decision of this Court passed in CWJC no. 13386 of 2005 related with the same firm Shanker Tea Store reported in the case of Birendra Kumar V. State of Bihar & Ors.; 2007(1) PLJR 445, wherein also there is reference of filing of complaint cases and another related dispute as of VAT wherein in Paragraph 12 it has been stated that petitioner of the said case, that is, full brother of opposite party no.2 here, was warned also. The relevant portion of the order reads as such: “In order to facilitate and early disposal of the matter the petitioner is directed to appear before the Assistant Commissioner along with a certified copy of this order within six weeks from today. This court is also like to give a stern warning to the petitioner to conduct the proceedings before the revenue authorities in a peaceful and cooperative manner and to refrain from abusing the process of the criminal courts.” 9. This much is undisputed that Bihar VAT Act, 2005 was a new legislation at the relevant time and the authorities of commercial taxes were pursuing the same and the different dealers were required to get 6 their firms registered accordingly. It is also undisputed that at the relevant time inspite of receipt of due notice for registration the concerned firms were not registered and when on 14th July, 2005 local authorities of Commercial Tax Department, including the petitioner, arrived at the shop, namely, Shanker Tea Store, some wrong took place there giving rise to lodging of first information report at the instance of petitioner and instant two cases by the complainant opposite party no.2 besides another which has now already been quashed, as referred to above. 10. From the plain reading of the averments made in the complaint it appears that they have been filed with altogether improbable stories, just to put pressure upon authorities of Commercial Tax Department who were persuading to enforce the scheme of VAT. 11. The courts below, without examining the probability of the case in mechanical manner, summoned the petitioner which is not permissible in law. It is required for the courts taking cognizance 7 proceeding in complaint case to go through the averments made and examining the probability before proceeding further. But nothing appears done. From plain reading of the averments it appears that they have been lodged with ulterior motive. Consequently not permissible to be entertained and permitted to continue. Thus, both the orders are quashed. The applications stand allowed. (Akhilesh Chandra, J.) Patna High court, The 03rd September, 2010. AAhmad/(NAFR).