IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10322 of 2006 TARKESHWAR PRASAD Versus THE STATE OF BIHAR & ANR ----------- For the petitioner : M/S S.A.Narain, Sr.Advocate , and Anup Kumar Sinha, Advocate For the State : Mr. Nirbhay Singh, A.P.P. For Opp.Party no.2: None __________ O R D E R The petitioner who along with his son has been arrayed as accused in Complaint Case no.2171 (C) of 2004 prays for the quashing of the order dated 2.5.2005 passed therein by Sri Devanand Mani Tripathi, the learned Judicial Magistrate, First Class, Patna, whereby and whereunder he has taken cognizance of the offences under Sections 341,323,504,379/34 I.P.C. against both the accused. The prosecution case as can be culled out from the complaint petition filed by the complainant in sum and substance is that the complainant, impleaded as Opp.Party no.2 herein, and the accused persons were long acquainted and maintained cordial relationship over the years taking advantage whereof accused no.1, the son of the petitioner herein and an unemployed youth, approached the complainant a few years back and requested for a loan of Rs. Three lacs to establish himself in some form of employment and assured to return the said amount by the end of the year, 2003. In view of the relationship the complainant in the presence of the petitioner herein allegedly handed over a sum of Rs.2, 56,000/- in cash to accused no.1 who gave a receipt for the sum received. It is said that with passage of - 2 - time when no part of the loaned amount was sought to be returned, the complainant sent a legal notice on 24.12.2003 in response whereto both the accused met the complainant and assured to return the money as early as possible and requested her not to take any legal action. It is alleged that notwithstanding the assurances given by the accused when no part of the loaned amount was returned whereupon on 5.5.2004 the complainant with a witness went to the house of the accused to demand refund of her money she was rebuked and ceremoniously told that there was no dues of the complainant’s money outstanding with them and that she should not bother them in the future. The complainant promised to take legal action and left. It is further alleged that when on 9.9.2004, the complainant with her witness no.1 was buying a book for her daughter from a book stall in Road no.11, Ashok Nagar, both the accused arrived and whereas accused no.1 abused and assaulted her with slaps and fists, the petitioner allegedly snatched her purse containing Rs.700/- cash and her gold chain worth Rs.12, 000/-. It has been submitted that the petitioner is an old affluent person who had superannuated from service some 10 years ago as a Dy.S.P. and could never think or resort to commission of overt acts as have been alleged against him and that he had been falsely implicated in this false case at the instance of the complainant, a shrewd lady and a habitual litigant who was given to filing false cases. It has also been submitted that if the story is to be believed, then the loan had been advanced to his son and he is in no way responsible for the same. It - 3 - was further submitted that in any event the entire dispute was civil in nature and any criminal prosecution would be an abuse of the process of the court. As held by the Apex Court in Indian Oil Corporation-Vrs. NEPC India Ltd. reported in (2006) 6SCC 736, a given set of facts may make out purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence and the same apart from furnishing a cause of action for seeking remedy in civil law may also involve a criminal offence. As the nature and scope of civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a breach of contract for which a civil remedy is available, is not by itself a ground to quash the criminal proceedings. In the instant case the allegation is not only restricted to the non-refund of the money loaned out but also to certain overt acts committed in consequence thereof on 9.9.2004. So far as the complainant being a habitual litigant and given to filing false cases and the petitioner being an affluent man and his background are concerned, these are the defence of the petitioner which can only be looked into at the time of framing of charge or in the trial. In the instant case the cognizance has been taken following an enquiry under Section 202 Cr.P.C. Since the object of an enquiry is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate has to satisfy himself that there is - 4 - sufficient ground for proceeding. For this he is entitled to consider only the evidence taken by him at the enquiry and he is not entitled to rely upon any other materials besides this and where there is prima facie evidence, even though an accused may have a plausible defence of his innocence, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. Reference in this connection may gainfully be made to the decision of Chandra Deo- Vrs. Prakash Chandra (AIR 1963 SC 1430). In view of the discussions made above I am unable to accept the submissions advanced by the learned counsel for the petitioner. He may raise all these issues at the time of framing of charge or in course of trial. Due regard being had to the facts and circumstances of the case I find no merit therein. Accordingly, this application is dismissed. ( Abhijit Sinha, J) Patna High Court, Patna Dated : the 22nd August,2008 Nawal Kishore Singh/A.F.R.