Criminal Miscellaneous No.31412 OF 1999 ------ In the matter of application under section 482 of the Code of Criminal Procedure. ------- BIMAL KUMAR SINGH @ BIMAL SINGH son of late Bhubneshwar Pd. Singh @ Bhubneshwar Singh, resident of village- Satkodaria, P.S.- K. Nagar, Dist.-Purnea, at present Chairman, Krishishakh Samiti, Satkodaria Pacs, Purnea ….. …..Petitioner Versus 1.STATE OF BIHAR 2.Birendra Kumar Singh son of late Shyam Sunder Singh, resident of village-Satkodaria, P.S.-K. Nagar, Dist.-Purnea …. …..Respondents ------ For the petitioner: M/s. B.K.Sinha, Sr.Adv. Vijay Shankar Shrivastava, Adv. For the State: Mr.Damodary Prasad Tiwary, Addl Public Prosecutor. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar,J. The sole petitioner, who, at the relevant time, was Chairman Krishishakh Samiti Satkodaria Pacs, Purnea, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 8.10.1999 passed by Sub.Divisoinal Judicial Magistrate, Purnea in Complaint Case No.304 of 1999. By the said order the learned Magistrate has taken cognizance of the offences under sections 406 and 420 of the Indian Penal Code and directed for issuance of processes for securing attendance of the accused persons. 2. Aggrieved with the order of cognizance, the petitioner has approached this court by filing the present petition. On 29.2.2000, while directing for issuance of notice to the 2 opposite party, this court directed that pending disposal of this application, further proceedings in C.A. No.304 of 1999 before the Sub. Divisional Judicial Magistrate, Purnea shall remain stayed and the order of stay is still continuing. Despite valid service of notice on opposite party no.2, he has not chosen to appear in the present proceeding and, as such, at the time of hearing none appeared on his behalf. 3. Short fact of the case is that the opposite party no.2 filed a complaint vide Compliant Case No.304 of 1999 in court of Chief Judicial Magistrate, Purnea disclosing therein that he and his father had taken some loan from the Purnea District Central Co-operative Bank Ltd., Purnea through Satkodaria Pacs, Purnea. It was alleged in the complaint petition that his father, who had taken loan subsequently died. It was disclosed that some amount was refunded by the complainant. In the complaint case, the complainant has given details in respect of payment of installment of loan on different dates. However, this petitioner in the capacity of Chairman, Sakodariya Pacs had made some false entry in the books of account and demanded exaggerated amount from the complainant. It was further alleged in the complaint petition that despite the fact that it was settled law that no compoundable interest was to be charged from the loanee by such pacs, the petitioner in the capacity of Chairman had demanded loan amount with compoundable interest. Accordingly, the complainant alleged that this petitioner had committed offences under sections 420 and 406 of the Indian Penal Code. After filing 3 the complaint, the complainant was examined on solemn affirmation. The complainant produced three witnesses at the stage of enquiry who, supported the complainant. Thereafter, by the impugned order the learned Magistrate has taken cognizance of the offences under sections 406 and 420 of the Indian Penal Code. 4. Mr. B.K. Sinha, learned senior counsel appearing on behalf of the petitioner, while challenging the order of cognizance, has argued that on perusal of the complaint petition as well as materials brought on record during the enquiry stage no offence either under section 406 or 420 of the Indian Penal Code is made out. He submits that the complainant himself has admitted in the complaint petition that he as well as his father from time to time had taken loan from the Purnea District Central Co-operative Bank Ltd., Purnea, through Satkodaria Pacs.He further argued that the petitioner and his father had taken loan even during the period while the petitioner was not the Chairman of Satkodaria Pacs. However, after being appointed as the Chairman of Satkodaria Pacs, this petitioner took steps to recover outstanding loan form different loanee and in course of that action he also asked the petitioner to refund the loan amount. During the course of hearing, learned counsel for the petitioner has filed a supplementary affidavit to show that during the pendency of this petition, the complainant had cleared all outstanding loan amounts and he had made payment along with interest. By the supplementary affidavit he has brought on record a photo copy of the deposit Chalan to show that total loan amount with interest to the tune of Rs.21,832/- 4 ( rupees twenty one thousand eight hundred and thirty two) was deposited by the complainant in the Purnea District Central Co- operative Bank Ltd., Purnea. While referring to annexure-11 to the supplementary affidavit, learned senior counsel for the petitioner has argued that the claim which was made by the petitioner in the capacity of Chairman Satkodaria Pacs has already been satisfied in view of deposit made by the complainant in the Bank. He submits that this categorically describes that whatever claim was made by the petitioner was genuine and due to that reason the complainant in compliance of that direction issued by this petitioner has cleared all outstanding loan amount with interest. It was argued that demanding loan amount by way of calculating compoundable interest cannot be considered as an offence as has been alleged by the complainant. It was further argued that while the petitioner was discharging his official duty, he has requested the complainant to deposit the outstanding loan amount. Accordingly, he submitted that without any evidence or any material, the Sub. Divisional Judicial Magistrate in a mechanical manner has passed the order of cognizance. 5. Mr. Damodar Prasad Tiwary, learned Additional Public Prosecutor appearing on behalf the State has opposed the prayer of the petitioner. He submits that at this initial stage of cognizance this court may not interfere. It was further argued that whatever arguments which have been advanced by the learned counsel for the petitioner are defence of the petitioner, which can be looked into by the trial court. Such defence may not be 5 entertained by this court that too while exercising power under section 482 of the Code of Criminal Procedure. On the point of deposit of loan amount by the complainant which has been substantiated in annexure-11 to the supplementary affidavit, the learned Additional Public Prosecutor submits that the deposit by the complainant was made on 31.3.2010 and, as such, no benefit can be given to the petitioner on the basis of such deposit. Accordingly, he has prayed for rejection of the present petition. 6. Besides hearing learned counsel for the parties, I have also examined the materials available on record. On perusal of the complaint petition, it is evident that the loan was taken by the petitioner and his father. It is not the case of the complainant that without disbursement of any loan, the petitioner in the capacity of Chairman of the Satkodaria Pacs has taken step to recover the loan amount. So far as allegation of calculating loan with compoundable amount is concerned, the same allegation cannot be considered as an offence as alleged by the complainant. After examining the complaint petition it can hardly be said that there was some dispute in between the petitioner and Satkodaria Pacs which was primarily a dispute of accountancy and for such allegation it would not be proper to allow the criminal prosecution that too by a loanee. In the peculiar facts and circumstances of the case, I am inclined to interfere at the stage of the order of cognizance. Accordingly, I am of the view that continuance of the proceeding on the basis of such complaint will certainly amount to allowing abuse of the process of court and with a view to prevent 6 abuse of process, it is necessary to quash the order of cognizance. Accordingly, the order of cognizance is set aside and the petition stands allowed. Patna High Court The 14th May, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)