IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.13471 of 2009 Smt.Shobha Jha & Ors .... .... Petitioners Versus The State Of Bihar & Anr .... .... Opposite Parties Appearance : For the Petitioners : Mr. Gautam Kr. Yadav Mr. Anjum Perveen Mr. T.U.Khan For the State : Mr. Amitesh Kumar, A.P.P. -------- HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA This petition has been preferred by the petitioners for quashing the order dated 13.3.2009 passed by Sri Ajay Kumar Srivastava, Judicial Magistrate, Ist Class, Patna in Complaint Case no. 228C/2009 by which and whereunder he, having found prima facie case under section 418 of the IPC against petitioners and some other accused persons, ordered to issue summons upon them for facing trial. 2. The brief fact, which lies to file this quashing petition is that opposite party no.2, namely, Ramen Kishore Jha @ Raju filed complaint case bearing Complaint case no. 228C/2009 in the court of learned Chief Judicial Magistrate, Patna alleging therein that on 5.2.2008, he got information that his sister namely, Smt. Shobha Jha (petitioner no.1) had filed petition for membership of the Patliputra Co- operative House Construction Society Limited before the above stated society through his mother, namely, Smt. Raj Kumari Jha and having got the aforesaid information, he gave an Patna High Court Cr.Misc. No.13471 of 2009 dt.20-11-2011 2 information to the aforesaid society and made request that no order should be passed on the aforesaid petition till the decision of the court because the matter is subjudice before the court . On 11.9.2008 he got letter from the Patliputra Co-operative House Construction Society Limited in which it was informed to him that petition of Smt. Shobha Jha (petitioner no.1) and Raj Kumari Jha had been rejected by the aforesaid society but again without giving an opportunity of being heard to him the same society enrolled the aforesaid Smt. Shobha Jha (petitioner no.1) as member of the society on the basis of the above stated petition whereas the aforesaid society had got no right to pass such order. He further alleged that his father was officer of Indian Administrate service and he died on 4.6.1994 after executing will in his favour and a probate case is pending in the civil court in respect of the above stated will but in spite of that the petitioners and other accused persons committed the above stated act. 3. The aforesaid averments of the complaint petition were enquired into by the enquiring court and in course of inquiry, the enquiring court recorded the statements of the witnesses and later on, passed the impugned order dated 13.3.2009 in the manner as stated above and being aggrieved with the aforesaid impugned order, the petitioners have preferred Patna High Court Cr.Misc. No.13471 of 2009 dt.20-11-2011 3 this quashing petition under section 482 of the Cr.P.C. 4. Notice was issued to opposite party no.2 by registered cover with A/D as well as ordinary process and the aforesaid notice had been received by the Manager of opposite party no.2. Again this court issued fresh notice to opposite party no.2 by both the above stated processes and it was reported by the process server that opposite party no.2 refused to accept the above stated notice as a result of which notice was affixed at his house and this court treated the aforesaid service of notice as valid. 5. Learned counsel appearing for the petitioners assailed the impugned order arguing that impugned order is bad in the eye of law as no case under section 418 of the IPC is made out. Continuing his submission, he contended that petitioner no.1 is sister of opposite party no.2 whereas rest petitioners are office bearers of the aforesaid Patliputra Cooperative society. It is further contended by him that dispute between the parties is purely of civil nature and it does not attract any of the ingredients laid down under section 418 of the IPC. 6. It is further contended by him that the father of opposite party no.2, namely, Nawal Kishore Jha was member of above stated society and he nominated his wife Smt Patna High Court Cr.Misc. No.13471 of 2009 dt.20-11-2011 4 Raj Kumari Jha accused no.1 of the complaint petition to succeed him as a member of the society and after death of the aforesaid Nawal Kishore Jha, the above stated Smt Raj Kumari Jha was enrolled as a member on 15.6.1994 who subsequently, nominated her daughter, namely, Smt. Shobha Jha (petitioner no.1) as a member of the society on 12.5.2008 in the prescribed format of the Patliputra Co-operative House Construction Society Limited and two members of the said society stood witnesses to the above stated nomination. It is further contended by him that the aforesaid Smt Raj Kumari Jha applied for transfer of her membership to her nominee daughter, namely, Smt. Shobha Jha, on the ground of her old age and when opposite party no.2 raised objection on the ground of pendency of case in the court, the Board of the aforesaid society rejected the petition of Smt Raj Kumari Jha for transfer of her membership to her daughter Smt. Shobha Jha (petitioner no.1) in its meeting dated 10.9.2008 but the aforesaid Smt Raj Kumari Jha again raised this matter before the Board of the society placing this fact that on account of membership no legal right is transferred and case pending before the court involves a different issue and thereafter the Board of Directors of the aforesaid society accepted the proposal of Smt Raj Kumari Jha and enrolled the petitioner no.1 as a member of the aforesaid Patna High Court Cr.Misc. No.13471 of 2009 dt.20-11-2011 5 society in its meeting dated 15.1.2009. 7. It is further contended by him that as per bye-laws of the society membership is given to only one legal heir or legal representative of a member without prejudice to the right of other legal heir or legal representative of a member. It is further contended by him that that even if the opposite party no.2 could not succeed to get membership of the society, then also, his other legal rights guaranteed under law of this land have not been affected because the membership does not confer any right or title in respect of allotted share to a member, and membership and title are two different connotation. 8. In support of his contention, he referred several rules of Bye-laws of the society. 9. No one appeared on behalf of opposite party no.2 at the time of hearing in spite of valid service of notice upon him. 10. Learned Addl. Public Prosecutor refuted the submissions of learned counsel for the petitioners and submitted that the learned court below has rightly passed the impugned order and there is no need to interfere into the impugned order by this court in this quashing petition. 11. Having heard contentions of both the parties I have gone through the record. Patna High Court Cr.Misc. No.13471 of 2009 dt.20-11-2011 6 12. Certain facts are admitted in this petition. It is an admitted position that father of petitioner no.1 and opposite party no.2 got constructed a house situated at plot no.226 Patliputra Colony being member of the Patliputra Co- operative House Construction Society Limited but he died on 4.6.1994 and after his death, his wife, namely, Smt Raj Kumari Jha became member of the aforesaid society as she had been nominated by the original member of the aforesaid society. The aforesaid Smt Raj Kumari Jha applied for membership as nominee of her husband in the year 1994 showing petitioner no.1 as her nominee and the aforesaid application of Smt Raj Kumari Jha was accepted by the Board of Directors of the aforesaid society vide proceeding dated 26.7.1998 which is evident from annexure 5 to this petition. 13. Rule 5 of the Bye-laws of the Patliputra Co-operative House Construction Society Limited says that application for admission as member and for allotment of share shall be made to the Honorary Secretary in the form, if any, prescribed by the society for the purpose and every such application shall be disposed off by the Board of Directors who shall have powers to grant admission or to refuse it without assigning any reason and any person refused admission may appeal to the Registrar, Cooperative societies whose decision Patna High Court Cr.Misc. No.13471 of 2009 dt.20-11-2011 7 shall be final. 14. Rule 6 of the aforesaid bye-laws says that no person can claim admission as a matter of right and mere membership shall not confer any claim to allotment of plot or house from the society. Furthermore, Rule 9 of the aforesaid bye-laws says that every member of the society may nominate a person to whom under bye-law 15 his share or interest in the capital shall be transferred or the value thereof or any sum payable under the bye-laws shall be paid and such member may from time to time revoke or vary such nomination and such nomination shall, in the event of his death, be given effect to by the society. 15. The above stated bye-laws of the society clearly state that no person can claim admission of membership, as a matter of right, and if a person refused to admission may appeal to the Registrar, Cooperative societies whose decision shall be final. 16. In the present case, it is an admitted position that Smt Raj Kumari Jha was nominated by her husband namely, Nawal Kishore Jha and after his death she was approved by the Board of Directors of the society as member of the said society on the basis of her application filed before the above stated society. It is not in dispute that above stated Smt Patna High Court Cr.Misc. No.13471 of 2009 dt.20-11-2011 8 Raj Kumari Jha has nominated petitioner no.1 as nominee in her application and she had herself made request before the aforesaid society to give membership of the society to Smt Shobha Jha, the petitioner no.1, in her place. No doubt, earlier the Board of Directors of the aforesaid society rejected the prayer of the aforesaid Smt Raj Kumari Jha on the ground that dispute is subjudice before the court but when Smt Raj Kumari Jha clarified the matter and brought to the notice of the Board of Directors that dispute pending in the court of law is quit different to the matter of grant of membership of the society, the Board of Directors reconsidered the prayer of Smt Raj Kumari Jha and appointed petitioner no.1 as member of the society. 17. Moreover, it is an admitted position that mere grant of membership of petitioner no.1 does not affect the legal right of opposite party no.2 in respect of the property left by his father and, therefore, in my view, learned counsel for the petitioners has rightly submitted that no case under section 418 of the IPC is made out against the petitioners and the present matter is squarely covered under the guidelines given by Apex court of the country in the case of State of Haryana & others vs. Ch. Bhajan Lal reported in AIR 1992 Supreme Court page 604. 18. Besides it, Rule 5 of the Bye-laws of the Patliputra Co-operative House Construction Society Limited Patna High Court Cr.Misc. No.13471 of 2009 dt.20-11-2011 9 says that the Board of Directors have powers to refuse the application for admission as member or to grant admission without assigning any reason and any person, who is aggrieved by the decision of the Board of Directors, may appeal to the Registrar Co-operative Society. It is evident from annexure 7 to this petition that the opposite party no.2 has already filed a petition before competent authority against grant of membership to petitioner no.1 by the concerned society and, therefore, on this score also, the petitioners can not be prosecuted for any criminal offence, particularly, under section 418 of the IPC. 19. On the basis of the aforesaid discussions, I am of the opinion that the present prosecution of the petitioners can not be permitted to be continued because the continuance of the prosecution of the petitioners would amount to abuse of process of the court. 20. Accordingly, I have no option except to quash the order dated 13.3.2009 passed by Sri Ajay Kumar Srivastava, Judicial Magistrate, Ist Class, Patna in Complaint Case no. 228C/2009. Hence the above stated impugned order dated 13.3.2009 passed by Sri Ajay Kumar Srivastava, Judicial Magistrate, Ist Class, Patna in Complaint Case no. 228C/2009 is, hereby, quashed. The Ist December, 2011 Shahid/ NAFR ( Hemant Kumar Srivastava,J)