IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25518 of 1998 MAHABIR PRASAD AGRAWAL SON OF LATE TELU RAM AGRAWAL, MANAGING DIRECTOR, ASSAM BENGAL ROADWAYS LTD. HAVING ITS HEAD OFFICE AT M.C.D. BUILDING DESBANDHU GUPTA ROAD, NEW DELHI. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. STATE BANK OF INDIA, INDUSTRIAL FINANCE BRANCH, PATNA THROUGH SHRI KAMALAKAR SINGH SON OF LATE LEUTINENT COLONEL R.B. SINGH, DEPUTY MANAGER(CREDIT) INDUSTRIAL FINANCE BRANCH, STATE BANK OF INDIA, RED CROSS BUILDING, 4TH FLOOR POLICE STATION GANDHI MAIDAN, TOWN AND DISTRICT PATNA. ... ... OPPOSITE PARTIES. ---- For the Petitioner : Mr. Shailendra Kumar Singh, Adv. For Opposite Party No.2 : M/S S.D. Sanjay, Adv. Akash Chaturvedi, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ----------- 4. 27.9.2010. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of entire prosecution in Complaint Case No.563(C) of 1997 as well as order dated 3.2.1995 passed by Smt. Sushma Sinha, Judicial magistrate, Patna. By the said order, the learned Magistrate has taken cognizance of offence under Sections 403, 406, 407, 409, 420, 468, 471 and 120(B) of the Indian Penal Code and directed for issuance of process against all the accused persons. Short fact of the case is that a complaint was filed on behalf of the State Bank of India, 2 Industrial Finance Branch, Patna in the court of Chief Judicial Magistrate, Patna, which was numbered as Complaint Case No.563(C) of 1997. In the complaint petition, allegation was made that Bank had issued credit facility to Accused No.1 and the Bank was required to make payment on the strength of production of transport receipt etc. The credit facility was extended to Rs.156 lakhs, which was enhanced on 18.10.1994. Subsequently, it was noticed that the Accused Nos.1 to 3 in connivance of other accused persons including the petitioner, without booking any material, had produced transport receipt and as such it was noticed that Bank was defrauded and Bank had suffered a loss of about Rs.60 lakhs. After filing the complaint, the complainant was examined on S.A. and thereafter, enquiry was conducted and finally by order dated 3.2.1998, the learned Magistrate took cognizance of offence under Sections 403, 406, 407, 409, 420, 468, 471 and 120(B) of the Indian Penal Code. It is relevant to mentione here that at the time of recording statement of the complainant, it was disclosed that till the date of his deposition, the Bank had suffered a loss of about Rs.3 Crores. Aggrieved with the order of cognizance, the 3 petitioner approached this Court by filing the present petition. It is relevant to mention here that before filing of the present petition an another accused, namely Laxmi Narayan Poddar, who was also one of the Transporter, approached this Court by filing a quashing application vide Cr. Misc. No.18301 of 1998. In the said case, on 9.9.1998, notice to opposite party no.2 was directed to be issued and in the meanwhile, it was directed that until further order, further proceeding in Complaint Case No.563(C) of 1997, so far as petitioner is concerned, shall remain stayed. In Cr. Misc. No.18301 of 1998 also, same prayer was made i.e. prayer for quashing of criminal prosecution as well as order of cognizance dated 3.2.1998, which has been prayed in the present petition. After noticing the fact that in similar matter, order of stay was granted, this Court, on 5.1.1998 passed an order to put up this case for admission after disposal of Cr. Misc. No.18301 of 1998, which was already on the board. It was further directed that till then further proceeding of the case shall remain stayed. Cr. Misc. No.18301 of 1998 (Laxmi Narayan Poddar Vrs. The State of Bihar & anr.) was admitted for hearing on 28.1.1999. It was directed that during the 4 pendency of the application, interim order passed on 9.9.1998 shall continue. Finally, after hearing the parties, a Bench of this Court by its judgment dated 26.3.2010 did not interfere with the criminal proceeding, but liberty was granted to the petitioner that if so advised, he may pray for his discharge. It was further observed that if such prayer is made before the trial court, the same shall be considered on its own merit without being prejudiced by any observation made in the order. While disposing, by its order dated 26.3.2010, it was ordered to vacate stay. It was directed that the court below shall proceed with the matter expeditiously in accordance with law. After disposal of Cr. Misc. No.18301 of 1998, the present case was listed for admission. On 20.9.2010, it was directed to list this case along with record of Cr. Misc. No.18301 of 1998. Accordingly, the present case was placed along with record of Cr. Misc. No.18301 of 1998. I have perused the record of Cr. Misc. No.18301 of 1998 also. In normal course, after the disposal of Cr. Misc. No.18301 of 1998, there was no point to allow hearing of the present case at length, but learned counsel for the petitioner Shri Shailendra Kumar 5 Singh insisted that in earlier case, all points were not raised and as such he may be allowed to raise relevant points, which were not at all placed in another case i.e. Cr. Misc. No.18301 of 1998. It was submitted by Shri Shailendra Kumar Singh, learned counsel for the petitioner that the order of cognizance is liable to be set aside on the ground that in this case, the learned Chief Judicial Magistrate, after filing of the complaint petition, had proceeded with enquiry and after proceeding with the enquiry, he was not authorized to transfer the case to any other Magistrate for further enquiry. Learned counsel for the petitioner, on this very point, has referred to number of judgments of this Court, those are 1995(2) BLJ 566 (Smt. Pawan Kumari & anr. Vs. State of Bihar), 1996 BBCJ 596 (Upendra Yadav Vs. Ramautar Mandal) and a Division Bench of this Court reported in 1982 BLJ 658 (Jital Tiwary Vs. State of Bihar & anr.). It was submitted that it has already been held in aforesaid cases that after commencing enquiry, the Magistrate cannot transfer the case to any other Magistrate for further enquiry under Section 202 of the Code of Criminal Procedure. Learned counsel for the petitioner has further argued that in this case, whatever allegation has 6 been made has been made against Accused Nos.1 to 3. It has further been submitted that petitioner was Managing Director of the Assam, Bengal Roadways Ltd. and he was sitting at Delhi and he was not having any connection with the affairs of the Branch of his Company, which was located at Patna. On the basis of averment made in the complaint petition, it has been argued that there is no material to show involvement of this petitioner. Learned counsel for the petitioner has also relied on a judgment of this Court reported in 2005(1)PLJR 505 (M/S Excise Industries Ltd. Vs. State of Bihar) on the point that in absence of any specific allegation, by designation, one cannot be made accused. Learned counsel for the petitioner has also referred to Annexure-2 to the petition, which is the order sheet in Complaint Case No.563(C) of 1997 and on aforesaid grounds, it has been prayed to quash the entire proceeding as well as the impugned order of cognizance. Shri S.D. Sanjay, learned counsel appearing on behalf of opposite party no.2 i.e. State Bank of India has vehemently opposed the prayer of the petitioner. It was submitted by Shri Sanjay that after noticing the fact that in identical case, stay order was passed i.e. in Cr. Misc. No.18301 of 7 1998, the petitioner with a view to take advantage of order of stay on 5.1.1999, while it was being ordered to list this case, after disposal of Cr. Misc. No.18301 of 1998, did not point out that the petitioenr’s case was not similar to the case of Laxmi Narayan Poddar i.e. in Cr. Misc. No.18301 of 1998. It was argued that the petitioner enjoyed the order of stay for a long period and he was waiting for disposal of Cr. Misc. No.18301 of 1998. At this belated stage, the petitioner is not entitled to raise all the points, which have been raised before this Court. It has further been submitted that the arguments, which were advanced by learned counsel for the petitioner before this Court, was argued at length in Cr. Misc. No.18301 of 1998 and once a co- ordinate Bench of this Court has already decided the matter in the similar circumstances against same order of cognizance, this Court may not take a different view otherwise it will amount to sitting on the order passed by a co-ordinate Bench, which is not permissible in the eye of law. Without going in detail, keeping in view the fact that Bank has suffered loss of crores of rupees and complaint petition indicates regarding conspiracy even on the part of the petitioner, it would not be appropriate for this Court to pass a 8 N.H./ different order than the order passed in Cr. Misc. No.18301 of 1998. Besides this, the petitioner had challenged the order of cognizance and this Court is exercising power under Section 482 of the Code of Criminal Procedure, which is to be exercise in exceptional of rarest of rare cases. Once, similar matter has already been decided in Cr. Misc.No.18301 of 1998 in all fairness, it is appropriate not to interfere with the order of cognizance or criminal proceeding in Complaint Case No.563(C) of 1997, which will amount to reviewing order of this court in Cr. Misc. No.18301 of 1998, which is not permissible in the eye of law. Accordingly, the petition stands rejected. In view of rejection of this petition, interim order of stay dated 5.1.1999 stands automatically vacated. Since for expeditious disposal in Cr. Misc. No.18301 of 1998, an appropriate direction has already been issued by this Court, there is no need to pass any order on this very point. ( Rakesh Kumar,J.)