IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14390 of 2007 1. Pradeep Kumar S/O Sri Premchand Prasad, Proprietor of M/S Mona Thread Mills 2. Smt. Malti Devi, Wife of Premchand Prasad 3. Premchand Prasad, S/O Ramchand Prasad All aforementioned residents of Mohalla- Ashok Chakra Gali Gurhatta, P.S. Khajkalla, District-Patna ---- Petitioners Versus 1. THE STATE OF BIHAR 2. Mr.N.R. Asthana, Senior Manager, Punjab National Bank, S.S.I.Branch, Boring Road, P.S. Buddha Colony, District-Patna --------------------------------Opp.Parties. ----------- For the petitioners: S/Sri Y.C.Verma, Sr, and Advocate L.K.Tiwary, Advocate For the State: Smt. Indu Bala Pandey, A.P.P. For Opp.Party No.2: Sri Niraj Kumar, Sinha, Advocate ----------- 21 23-11-2010 Heard learned counsel for the petitioners, learned counsel for Opp.Party no.2 and learned Addl.Public Prosecutor for the State. Three petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure have prayed for quashing of entire criminal prosecution in Buddha Colony P.S. Case No.170 of 2000 as well as quashing of order of cognizance dated 10.1.2007 passed by Sri S.Kausar, learned Judicial Magistrate, 1st Class, Patna in G.R. Case No.3829 of 2005 arising out of Buddha Colony P.S. Case No.170 of 2000. Short fact of the case is that a complaint petition was filed on behalf of Punjab National Bank in the court of learned Chief Judicial Magistrate, Patna arraying the petitioners as accused on accusation of commission of offence under Sections 379,380,406,418,420, 120B/34 of the Indian Penal Code. It was disclosed in the complaint petition that petitioner no.1 was granted 2 cash credit facility to the tune of Rs.6,50,000/- and for which certain properties/ articles were hypothecated with the Bank. It was alleged that despite the fact that the petitioner no.1 had availed the facility of the cash credit and withdrawn Rs.6, 50,000/-, he did not refund the loan amount. Besides this, petitioner no.1 in connivance with the guarantors i.e. petitioner nos.2 and 3, had sold the hypothecated goods without taking any previous consent of the Bank and without knowledge of the Bank. After the complaint petition was filed , it was referred to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure and, as such, an F.I.R. vide Buddha Colony P.S. Case No.170 of 2000 was registered. During investigation, accusations made against the petitioners were found true and, as such, chargesheet was submitted and thereafter by the impugned order, i.e. order dated 10.7.2001, the learned Magistrate took cognizance of the offences under Sections 406, 420/34 of the Indian Penal Code. It appears from the record that after the order of cognizance, a petition under Section 239 of the Code of Criminal Procedure was filed on behalf of the petitioners for their discharge on 6.4.2002 and finally the discharge petition was rejected on 25.1.2007. In the present petition, there is no prayer for quashing of the order dated 25.1.2007 whereby the discharge petition was rejected. In prayer portion, it has been prayed to quash the order of cognizance dated 10.7.2001 as well as the entire criminal proceeding. Sri Y.C. Verma, learned Senior Counsel appearing on behalf of the petitioners, while challenging the entire prosecution as 3 well as the order of cognizance submits that no offence either under Section 420 or 406 is made out. It was submitted that neither in the complaint petition nor during the investigation any material was collected to show that right from the very inspection, the petitioners had intended to cheat the Bank. It was further submitted that the amount of properties, which were hypothecated against the loan, were much higher than the sanctioned loan. It has further been submitted that only bald allegation was made in the complaint petition that accused persons had conspired with each other. So far petitioner nos.2 and 3 are concerned, they were only guarantors and, as such, they cannot be prosecuted along with petitioner no.1. It was further submitted that for recovery of the loan amount, the Bank has also filed a certificate case vide Certificate Case No.88 of 2000-01. According to Sri Verma, learned Senior Counsel for the petitioners, the dispute in between the parties was purely civil in nature and for such accusation, criminal court may not be allowed to be used. On the aforesaid ground, it has been prayed to set aside the order of cognizance as well as entire criminal prosecution. I have also heard Smt Indu Bala Pandey, learned Addl.Public Prosecutor as well as Sri Niraj Kumar Sinha, learned counsel appearing on behalf of Opp.Party no.2 i.e. Senior Manager, Punjab National Bank, Boring Road, Patna. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the contents of the complaint petition, particularly paragraph 6 of the complaint petition, the Court is satisfied that it was a clear-cut case 4 at least for the offence under Section 406 of the Code of Criminal Procedure. It would be appropriate to quote the allegation mentioned in paragraph-6 of the complaint petition, which is as follows: “6. That the complainant has come to know that the accused no.1 in connivance and in collusion with his guarantors-accused nos.2 and 3 has sold the goods which were hypothecated to the Bank and were the Bank’s property without taking any previous written consent of the Bank and also without any knowledge to the Bank and the accused persons have misappropriated the money of the Bank for their wrongful gain and wrongful loss to the Bank.” The said complaint was referred to the police and the police after registering the F.I.R. had conducted thorough investigation and thereafter chargesheet was submitted. After filing of the chargesheet and order of cognizance, it appears from the record that the petitioners only with a view to delay the commencement of the trial filed a petition for discharge under Section 239 of the Code of Criminal Procedure. The order dated 25.1.2007, whereby the discharge petition was rejected is self- explanatory. Learned Magistrate had noticed that discharge petition was filed on 6.4.2002 and thereafter no step was being taken by the petitioners and only after the bail bond of the accused persons were cancelled, they appeared and thereafter in the year, 2007 they pressed the petition, which has been rejected by assigning a detail reason. After going through the order of rejection of discharge petition, the Court is satisfied that the learned Magistrate has passed a valid order. In this case, order of cognizance was passed long back 5 in the year 2001 and in the petition, even after rejection of discharge petition, the petitioners have prayed for quashing of order of cognizance as well as for quashing of the entire prosecution. After going through the entire material, the Court is satisfied that there is no ground for interfering either with the criminal Proceeding or with the order of cognizance/ rejection of discharge petition. Accordingly, the petition stands rejected. In view of rejection of the present petition, interim order of stay stands automatically vacated. Keeping in view the fact that the matter remained pending before this Court for a long period, it is desirable to direct the court below to proceed with the case expeditiously, so that the matter may come to its logical end without any further delay. It is also desirable to direct the court below to conclude the charge matter within a period of one month from the date of receipt of a copy of this order and thereafter step may be taken to conclude the trial within a period of eight months. Let a copy of this order be sent to the court below forthwith. NKS/- ( Rakesh Kumar, J.)