IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35726 of 2007 Smt. Guriya @ Lalita Devi @ Lalita Kumari @ Lalita Yadav, W/O Sri Dharmendra Yadav @ Dharmendra Kumar 2. Harish Yadav @ Harish Kumar S/O Sri Ram Bharose Yadav @ Ram Bharose Both are resident of Yaduvanshi Niwas, House No.510, Gali No.9, P.S. Model Town, Roop Nagar, Hoshiyarpur (Punjab) ---------------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Jay Prakash Singh, S/O Sri Shivmurat Singh, resident of Vill- Sivon, P.S. Bhabhua, District-Kaimur, at present residing at Bhabhua Ward No.1, infront of Bhabhua, Chainpur Road, Electricity Colony, P.S. Bhabhua, District-Bhabhua, Kaimur ------------------------------ Opp.Parties. -------------- For the petitioners: Sri Keshav Srivastava, Sr. Advocate For Opp.Party no.2: S/Sri Ravi Shankar Sahay and Tribhuwan Narayan, Advocates For the State: Sri Ramchandra Singh, A.P.P. ----------- 08 24th -01-2011 Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure , have prayed for quashing of an order dated 8.9.2005 passed by the learned Chief Judicial Magistrate, Bhabhua in Complaint Case No.906 of 2005 . By the said order, the learned Chief Judicial Magistrate has taken cognizance of offences under Sections 467,468,471,406, 420/120B of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate, Bhabhua vide Complaint Case No.906 of 2005 alleging therein that three accused persons including the petitioners had committed offences under Section 420/120B , 467,468,471, 406 of the Indian Penal Code. It was alleged by the complainant that accused 2 Dharmendra Yadav, husband of petitioner no.1, petitioner no.1, petitioner no.2, brother of petitioner no.1 conspiring with each other by forming a forged firm in the name and style of Rubber India had earned crores of rupees by committing fraud and cheating. It was alleged that the husband of the petitioner had contacted the complainant presenting himself as the Manager of Rubber Indian Firm and enticed the complainant that he was in need of franchisee for the town of Bhabhua and asked that if he deposits Rs.1 Lac as security money , then the complainant can be appointed as a dealer and interest @ 12 % per annum will be paid to the complainant on the security deposit of Rs.1 Lac and further for paying Rs. 4 Lacs for the purposes of supply of tyres of all types of vehicles. The complainant was assured that against said Rs. 4 Lacs amount an interest @ 2 % per annum will be paid to the complainant. Thereafter, the complainant firstly paid Rs.88,000/- through Bank Draft and Rs. 12 ,000/- in cash as security amount and subsequently he paid Rs.3,86,000/- through Bank Draft in the name of the Firm of the accused and Rs.14,000/- cash was paid. For this very purpose , an agreement was also executed and accused no.1, i.e. husband of petitioner no.1 also sworn a notarized affidavit before making payment .As per the agreement , the complainant had also taken a shop on rent for the purposes of opening of franchisee shop of the firm of the accused. The complainant disclosed in the complaint petition that the said franchisee firm was inaugurated on 14.12.2004 and inauguration ceremony was photographed also. Thereafter, the complainant tried to get delivery 3 of articles ( tyres) and came to Patna Office of the firm. However, accused no.1 was not found and it was intimated by an employee of the Company that he had gone to somewhere else in connection with the work of the company. From the employee of the company, the complainant could gather permanent address of the accused. After waiting for some time, again the complainant came to Patna. However, he found that the Signboard of the office was not available nor any employee was there. He came to know that the office had already been shift to somewhere else. Any how, the complainant could gather the address of the accused, which was of Hoshiyarpur (Punjab). The complainant, thereafter, went to contact both the petitioners and after discussing for some time, he came to know that both the petitioners in connivance with accused no.2, Dharmendra Yadav (husband of petitioner no.1) are committing fraud by creating false firm and committing fraud since long. Both the petitioners avoided to disclose whereabouts of accused no.1. It was specifically asserted in the complaint petition that by all the three accused persons, which include both the petitioners, the complainant was cheated by committing fraud to the tune of Rs.5 Lacs. After filing of the complainant petition, the complainant was examined on solemn affirmation and in support of the complaint, two witnesses were examined. The learned Chief Judicial Magistrate after examining the complainant, statement of the complainant , evidence of witnesses and materials available on record by order dated 8.9.2005 took cognizance of offences under Sections 467,468,471,406, 420/120B of the Indian Penal Code and 4 summoned both the petitioners and one another accused. 3. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition, which was filed on 3.8.2007. On 6.10.2007, while the matter was taken up for hearing on the point of admission, on the praryer made by the learned counsel for the petitioners the case was adjourned. In the meanwhile the court observed that the learned counsel for the petitioners will take instruction to ensure that the amount, which has been paid by the Opp.Party no.2 to the petitioner, is returned back. Thereafter, the case was adjourned on several dates and finally on 3.12.2009 notice was directed to be issued to opposite party no.2. In the meanwhile, it was directed that pending final hearing of this application, further proceedings in the court below in Complaint Case No.906 of 2005 shall remain stayed, so far as these petitioners are concerned. After service of notice, Opp.Party no.2 appeared on 29.9.2010 After hearing both the parties, order was reserved. 4. Sri Keshav Srivastava, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of cognizance, has argued that from the contents of entire complaint petition, no case is made out against either of the petitioners. It was submitted that in the complaint petition whatever allegation has been levelled , has been leveled against accused no.1, i.e. Dharmendra Yadav. It was submitted that petitioner no.1 being wife of the main accused Dharmendra Yadav has been made accused without any material. Similarly, petitioner no.2, who is brother of petitioner no.1, has been made accused without any material available on record. 5 Learned counsel for the petitioners further submits that in any event on the basis of vicarious liability, petitioners cannot be prosecuted. Learned Senior Counsel has argued that petitioner no.1 was residing separately with her husband and she is a Bank employee of State Bank of Patiala, posted at Hoshiyarpur whereas petitioner no.2 is employee of Electricity Board of Punjab, posted at Hoshiyarpur, Punjab. Learned Senior Counsel for the petitioners has referred to Annexures 4 and 5 series to the petition to show the genuineness of both the petitioners. Annexure-4 at page-29 is photo copy of the Certificate issued by the Manager of State Bank of Patiala, whereby it has been certified that petitioner no.1 was working in the State Bank of Patiala since 1987. Annexure-4 series at pages 30-31 is photo copy of Ration Card issued in the name of petitioner no.1 and Annexure-4 series at page-32 is photo copy of the Identity Card issued by the Election Commission of India in favour of the petitioner. Similarly, Annexure-5 at page-33 is Certificate issued by the Executive Engineer, Punjab State Electricity Board, Hoshiyarpur certifying that petitioner no.2 was working in Punjab State Electricity Board as Junior Engineer. Annexure-5 series at pages 34- 35 is photo copy of the Ration Card and Annexure-5 series at page- 36 is photo copy of the Identity Card issued by the Election Commission of Indian in favour of petitioner no.2. It was submitted by Sri Srivastava, learned Senior Counsel appearing on behalf of the petitioners, while referring to aforesaid Annexures, that both the petitioners were not residing with accused no.1 i.e. Dharmendra Yadav , against whom only allegation was made in the complaint 6 petition or in the statement of the complainant recorded on solemn affirmation. In sum and substance, it was argued that from the complaint petition, no case is made out against the petitioners.. However, hardly, it can be said to be case of vicarious liability and for such, the petitioners cannot be prosecuted. Leanred Senior Counsel for the petitioners has referred to a Judgment of Hon’ble Supreme Court reported in (2009)1 SCC 516 (R.K. Kalyani Vs. Janak Singh Mehta & Ors.). It was argued that in view of law laid down by the Apex Court, no one can be prosecuted for vicarious liability and, as such, the order of cognizance so far as both the petitioners are concerned is liable to be set aside. 5. Sri Ravi Shankar Sahay, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners. It was submitted that in the complaint petition itself, there is specific assertion that all the three accused persons , which include both the petitioners had conspired together to cheat the complainant and by committing fraud they had defrauded the complainant to the tune of Rs.5 Lacs. While referring to counter affidavit, it was submitted that accused persons had participated in inaugural function of the franchisee office on the date of opening and petitioner no.2 also participated in the opening ceremony. During the opening ceremony photographs were taken and in several photographs, petitioner no.2 appears. Learned counsel for Opp.Party no.2 has referred to Annexures -A Series to its counter affidavit. It was argued that many such materials were brought on record before the court below and the learned Chief Judicial Magistrate after 7 examining all the materials has passed the order of cognizance. It was submitted that at this initial stage, this Court may not interfere with the impugned order that too while exercising power under Section 482 of the Code of Criminal Procedure. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Of course, at the time of hearing a petition under Section 482 of the Code of Criminal Procedure, this Court is not required to examine all the Annexures to the petition, but even some of the Annexures , which has been brought on record by the petitioners, create doubt in the mind of the Court so far as defence of accused is concerned. For Example, Annexure-4 at page 29 at least creates some doubt. Annexure-4 is a certificate purported to be issued by the Manager of the State Bank of Patiala on 18.4.2007, in which petitioner no.1 has been shown as Lalita Yadav, daughter of R.B.Yadav. Since petitioner no.1 is the wife of main accused, the Court failed to understand as to what was the reason that instead of her husband name in the Certificate; her father’s name has been mentioned as R.B.Yadav. At different places, petitioner no.1 has been shown with different name. Annexure-4 series at pages 30-31 is photo copy of the Ration Card issued by the competent authority, wherein petitioner no.1 has been named as Guriya. In Annexure-4 series at page-32 i.e. Identity Card issued by the Election Commission of India, which appears to be issued in the year 2006, she has been named as Lalita Kumari W/O Dharmendra Kumar (accused no.1). At three different places, petitioner no.1 has been shown with three different names. Of 8 course, for the purposes of deciding the present case, it has got no much relevance, but at least it is sufficient to create doubt on the defence taken by petitioner no.1. This is not the stage to examine the defence of an accused. After going through the complaint petition, the Court is of the opinion that it is not a case to be categorized as exceptional case. Time without number, it has been held that power under Section 482 of the Code of Criminal Procedure is to be exercised sparingly and in exceptional cases. In AIR 1992 SC 604 (State of Haryana Vs. Bhajanlal ) it has been held that the power under Section 482 of the Code of Criminal Procedure so far as quashing of a criminal proceeding at initial or interlocutory stage is concerned , is to be exercised sparingly and in rarest of rare cases. The same principle has been again and again reiterated. 7. In view of the facts and circumstances of the case, the Court is of the opinion that it is not a fit case for exercising inherent jurisdiction in favour of the petitioner and, accordingly, the petition stands rejected. 8. In view of rejection of the present petition, interim order of stay dated 3.12.2009 stands automatically vacated. Let a copy of this order be sent to the court below forthwith. NKS/- ( Rakesh Kumar, J.)