Criminal Miscellaneous No.17409 of 1999 -------- In the matter of an application under section 482 of the Code of Criminal Procedure ------ 1. Smt. Neelam Singh wife of Thakur Akhilesh Kumar Singh 2. Thakur Akhilesh Kumar Singh son of Late Thakur Awadh Nandan Singh, both are resident of Rental Flat No. 423 Kankarbagh Colony, Patna ......petitioners Versus 1. The State Of Bihar ..... .... opposite Ist party 2. Thakur Mithilesh Kumar Singh son of Late Thakur Awadh Nandan Singh, resident of Mohalla- Rental Flat No. 423, Kankarbagh Colony, Patna .. opposite 2nd party 3. Bihar State Housing Board through the Chairman cum Managing Director, Mangles Road, Patna, PS Secretariat at Patna .. ... opposite 3rd party For the petitioner: Mr. Ram Bali Jha, Advocate For the State: Mr. Damodar Tiwary, APP P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh, J. Heard learned counsel for the petitioners and learned counsel for the State. Inspite of name of counsel for the complainant appearing in the daily cause list on two successive dates, he has chosen not to appear and contest this quashing application. The petitioners have prayed for quashing the entire criminal prosecution vide Complaint case no. 1783(c)/1998 pending in the court of Judicial Magistrate, 1st class, Patna and also the order of cognizance passed on 9-6-1999 for offences under sections 181, 420, 465 and 120B of the Indian Penal Code. 2 Petitioner No.2 is elder brother of the complainant/ O. P. No. 2 and petitioner No.1 is wife of petitioner No.2. From the averments in the complaint petition it appears that father of the complainant died in 1973 leaving behind his widow Smt. Ram Shringari Devi, three sons and four daughters. The names of all the heirs are mentioned in the complaint petition. In 1977 Rental Flat No. 423 in Kankarbagh, Patna was allotted by the Bihar State Housing Board to Smt. Ram Shringari Devi, mother of the complainant. She died in the year 1984. As per complaint petition the complainant or other heirs took no interest in continuation as tenant of the Rental Flat No. 423 and admittedly no rental including arrears were paid by any of the heirs till in the year 1990 petitioner No.1 applied for taking Rental Flat in question on rent in her name. Allegedly in that application she did not disclose the correct facts and full details of sons and daughters of Smt. Ram Shringari Devi and claiming her husband to be the sole heir in respect of Smt. Ram Shringari Devi, she applied for taking the flat in question on rental and her prayer was allowed. 3 According to the petitioners, when huge arrears had mounted, being in need of a rental accommodation they paid the arrears and in order to avoid delay filed an application giving the name of petitioner No.2 as heir of Smt. Ram Shringari Devi so that requirement of filing of no objection may not delay and complicate the matter and the flat may not be given on rent to any 3rd party on account of arrears. It is clear from the complaint petition that in the year 1985 a Title Partition Suit amongst the complainant and his brothers came to be filed at Sitamarhi and in that suit the name of all the legal heirs of Smt. Ram Shringari Devi and her husband have been correctly given by the parties. Learned counsel for the petitioners has submitted that since other heirs of Smt. Ram Shringari Devi were not interested in taking the flat on rental nor they ever paid the rent of that flat or its arrears, the petitioners under their personal need applied and obtained the tenancy of the flat in their name and such Rental Flat is not a property of the earlier tenant Smt. Ram Shringari Devi in which the other heirs could claim any share. On that basis, it has been submitted that the 4 complainant being one of the sons of Smt. Ram Shringari Devi cannot maintain a case of cheating or breach of trust because she was only a tenant of the flat in question nor could he claim any share in the rented premises and hence, he has not suffered any legal loss or injury on account of that flat being taken on rent by the petitioners after paying arrears of rent. Since learned counsel for the complainant has chosen not to appear and contest the case, no documents etc. have been produced to show that in the flat in question Late Ram Shringari Devi had any better or further interest than that of a tenant. In the aforesaid facts and circumstances and considering the relationship between the parties and nature of the allegations, it is found that allowing the present complaint case of the year 1998 for an occurrence of 1990 shall be an abuse of the process of the court. Interest of justice also requires that such criminal case between family members should not be allowed to proceed especially when the subject matter of 5 the alleged fraud or breach of trust is only a rental flat. Hence, this application is allowed and the entire criminal prosecution including the impugned order of cognizance are hereby quashed. Since it has come in the complaint petition that partition suit is pending between the family members and the complainant, it is made clear that any observation made in this order shall not prejudice the case of the parties in the pending partition suit and the family members will be free to claim civil rights in respect of the flat in question, if they are so advised, in accordance with law. Patna High Court The 27th April, 2010 NAFR/BKS (Shiva Kirti Singh, J.)