IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14625 of 2009 1. Prasun Kumar Choudhary, S/O-Hari Prasad Choudhary 2. Vijaya Jha @ Vijaya Rani, W/O-Prasun Kumar Choudhary Both resident of Mohalla-Professor Colony, Rangbhumi Maidan, P.S.- K. Hat, District-Purnea, present address in premises of Mahila College, Purnea. ……………………..Petitioners Versus 1. The State of Bihar 2. Seema Devi, W/O-Uday Shankar Prasad Singh, Mohalla-Prabhat Colony, P.S.- K. Hat, District-Purnea …….Opposite Parties. ----------- For the Petitioners :- Mr. Sidharath Prasad (Adv.) For the Respondent :-Mr. Ramakant Sharma (Sr. Adv.) Mr. Narendra Kumar Singh For the State :- Mr. Kalyan Shankar (A.P.P.) 05 06.09.2011 Heard learned counsel for the petitioners as well as learned Additional Public Prosecutor for the State and also learned counsel for Opposite Party No. 2. This petition under Section 482 of the Cr.P.C. has been filed on behalf of the petitioners, who are accused in Complaint Case No. 1978 of 2008, for quashing order dated 02.03.2009 passed by learned Judicial Magistrate, Purnea in above stated Complaint Case No. 1978 of 2008 (wrongly mentioned in first paragraph of the petition that the impugned order dated 02.03.2009 has been passed by Chief Judicial Magistrate, Purnea in K. Hat P.S. Case No. 363 of 2006). The learned Judicial Magistrate, Purnea has passed the impugned order dated 02.03.2009 by which he having found prima facie case under Section 420 of the Indian Penal Code against the petitioners, ordered to issue notices to them to procure their attendance for facing trial. 2 The brief fact, which lies to file this quashing petition, is that Opposite Party No. 2, namely, Seema Devi filed complaint case bearing Complaint Case No. 1685 of 2006 in the court of Chief Judicial Magistrate, Purnea against the petitioners alleging therein that her husband, namely, Sri Uday Shankar Prasad Singh runs a school, namely, Mount Carmel English School at Prabhat Colony, Purnea. The petitioner no. 1, namely, Prasun Kumar Choudhary was working as principal of the said school since long back. Petitioner no. 1 wanted to purchase a piece of land for which he was in need of money and he demanded a sum of rupees two lacs as loan from the husband of Opposite Party No. 2 and assured him that he will repay the loan by adjusting rupees four thousand per month from his salary and the rest amount will be paid by him by the end of the year 2005 after selling the lands at his native village. The petitioner no. 2 used to visit the petitioner no. 1 at the premises of above stated school. Since the husband of Opposite Party No. 2 had no bank account in his name and the bank account stood in the name of Opposite Party No. 2, the petitioners approached the Opposite Party No. 2 and made the above stated demand and also gave the above stated assurance to the Opposite Party No. 2. Subsequently, having trusted upon the petitioners, the Opposite Party No. 2 gave rupees one lac eighty thousand to petitioners on different dates. Further, the case of Opposite Party No. 2 is that she gave rupees one lac forty thousand through cheques to petitioner no. 1 on different dates whereas 3 rupees forty thousand was paid by her in cash but after taking the above stated amount petitioner no. 1 stopped coming to the above stated school and thereafter, when Opposite Party No. 2 as well as her husband contacted the petitioner no. 1 at his resident and tried to know the reason of not coming to the school from petitioner no. 1, he gave unsatisfactory answer and again when Opposite Party No. 2 and her husband demanded the above stated amount on several occasions, the petitioner no. 1 refused to repay the aforesaid amount and also misbehaved with them. The Opposite Party No. 2 along with her husband went to concerned police station on 30.07.2006 to lodge a report and narrated the above stated incident to Officer-in-Charge of concerned police station and on the request of Officer-in-Charge of concerned police station, the Opposite Party No. 2 gave her grievances in writing to the above stated police official but the above stated police official did not register any case against the petitioners and, thereafter, Opposite Party No. 2 filed above stated complaint case bearing Complaint Case No. 1685 of 2006. Having receipt the above stated complaint case, the learned Chief Judicial Magistrate, Purnea sent the aforesaid complaint petition to concerned police station under Section 156 (3) of the Cr.P.C. for institution of first information report and investigation. The police registered K. Hat P.S. Case No. 363 of 2006 for the offences under Sections 419 and 420 of the Indian Penal Code on the basis of above stated complaint petition and 4 investigated the matter. After due investigation, police submitted final form showing the accusation untrue and also prayed for initiation of proceeding under Sections 182 and 211 of the Indian Penal Code against Opposite Party No. 2. It appears from certified copy of order sheets passed in K. Hat P.S. Case No. 363 of 2006 corresponding to G.R. No. 1891 of 2006 that Opposite Party No. 2 filed a protest petition against the investigation of police in the above stated police case. Furthermore, it appears from the order sheets of K. Hat P.S. Case No. 363 of 2006 corresponding to G.R. No. 1891 of 2006 that having receipt the final form, learned Chief Judicial Magistrate issued notice to Opposite Party No. 2 and subsequently, learned Chief Judicial Magistrate proceeded on protest petition treated it as complaint petition. Though, it is not clear from the record as to whether the learned Chief Judicial Magistrate accepted the final form of K. Hat P.S. Case No. 363 of 2006 as submitted by the police after due investigation or not but it appears to me that the learned Chief Judicial Magistrate, Purnea proceeded on protest petition treating it as complaint petition after acceptance of final form submitted in K. Hat P.S. Case No. 363 of 2006. It further appears from the record that the aforesaid complaint case was transferred to the court of Judicial Magistrate, who conducted an enquiry and passed impugned order dated 02.03.2009 in the manner as stated above. Notice was issued to Opposite Party No. 2 by this 5 Court and she appeared before this Court by filing Vakalatnama through her learned counsel and subsequently, this Court admitted the present petition for hearing. Learned counsel appearing for petitioners submits that no case under Section 420 of the Indian Penal Code is made out because as per case of the Opposite Party No. 2, she had given the amount in question to the petitioners as loan and there was no intention of petitioners to cheat the Opposite Party No. 2 at the time of taking the above stated loan amount. It is further contended by him that there is noting on the entire record to show this fact that there was any intention of cheating from very inception of taking the loan and mere assurance given by the petitioners to return the amount in question does not constitute an offence under Section 420 of the Indian Penal Code. To fortify his contention, he relied upon a decision reported in 2007 (2) PLJR Page-219 Subesh Kumar and Anr vs. State of Bihar and Anr in which this Court has observed that if there is no allegation against the accused that from very inception there was any intention on the part of the accused to cheat the complainant, mere simple allegation of assuring the complainant that alleged lended money would be returned by other co-accused does not constitute an offence under Section 420 of the Indian Penal Code as there is complete lacking of important ingredients for making out prima facie case under Section 420 as well as 406 of the Indian Penal Code. Another decision cited by learned counsel for the petitioners is (2005) 13 6 Supreme Court Cases 697 in which Hon’ble Apex Court of this country has held that in absence of any averments in the complaint so as to infer fraudulent or dishonest inducement having been made by the accused, pursuant to which the complaint parted with his money, it cannot be said that the accused had cheated the complainant. It is further contended by him that as per case of Opposite Party No. 2, she made payment of rupees one lac forty thousand to petitioners through cheques which had been issued by her on different dates but Annexure-4 to this petition reveals that all the five cheques were issued either in the name of husband of Opposite Party No. 2 or in favour of the complainant herself. So, the aforesaid materials clearly suggest that not a single cheque had been issued either in the name of petitioner no. 1 or in the name of petitioner no. 2. It is further contended by him that in her complaint petition bearing Complaint Case No. 1685 of 2006, she has nowhere stated that the cash amount was paid to the petitioners in presence of any other person rather a vague statement in respect of payment of the alleged cash amount has been made by the Opposite Party No. 2 in her first complaint case bearing Complaint Case No. 1685 of 2006 but subsequently, in course of enquiry of Complaint Case No. 1978 of 2008, she as well as her witnesses developed the story and stated that the alleged cash amount was paid by the Opposite Party No. 2 in presence of witnesses, namely, Mahmoodul Hasan, Manoj Kumar, Ratnesh Kumar Jha and 7 Ramchandra Jha and, therefore, the aforesaid complaint case bearing Complaint Case No. 1978 of 2008 is nothing but only the abuse of process of the law. On the other hand, learned counsel appearing for Opposite Party No. 2 supported the impugned order and submitted that a prima facie case under Section 420 of the Indian Penal Code is made out against the petitioners because having taken the advantage of faith of the Opposite Party No. 2, the petitioners cheated her as well as her husband. It is further contended by him that though the complaint petition has been poorly drafted but the averments made in the complaint petition clearly constitute a prima facie case under Section 420 of the Indian Penal Code and, therefore, the learned court below has not committed any illegality in the impugned order. Certain facts are admitted between the parties. It is an admitted position that initially, Opposite Party No. 2 filed complaint case bearing Complaint Case No. 1685 of 2006 which was converted into K. Hat P.S. Case No. 363 of 2006 and after due investigation, police submitted final form finding the accusation untrue and the Opposite Party No. 2 filed a protest petition against the investigation of the police and learned Judicial Magistrate, Purnea proceeded on the basis of aforesaid protest petition as learned Chief Judicial Magistrate, Purnea treated the aforesaid protest petition as complaint petition. It is the case of the Opposite Party No. 2 that 8 petitioner no. 1 had taken the alleged amount as loan and there is no averment in the complaint petition that at the time of taking the aforesaid loan there was intention of petitioner no. 1 to cheat the Opposite Party No. 2. It is further case of Opposite Party No. 2 that first cheque was issued by her on 17.07.2004 whereas last cheque was issued on 09.07.2005. The aforesaid fact is evident from perusal of Annexure-4 to the petition. It is further case of the Opposite Party No. 2 that all the transactions took place between 17.07.2004 to 09.07.2005. It is further case of Opposite Party No. 2 that petitioner no. 1 had assured her to return the entire amount till the end of year 2005, if after deducting rupees four thousand per month from his salary, the loan amount is not adjusted. It is further case of the Opposite Party No. 2 that petitioner no. 1 stopped attending his duty after taking the loan amount. Annexure-4 to this petition reveals that allegedly, first cheque was issued by rupees fifty thousand. So, even if, the story of Opposite Party No. 2 assumed to be true, then also, it is apparent that petitioner no. 1 stopped attending his school after taking the aforesaid amount but in spite of that the rest cheques were issued because there is nothing on the entire record to show this fact that any deduction was made from the salary of the petitioner no. 1 after issuance of first cheque dated 17.07.2004. Apart from this, it would appear from Annexure-4 to this petition that almost all the cheques in question were either issued in the name of husband of Opposite Party No. 2 or in her name itself. So, the aforesaid fact also does 9 not support the allegation levelled against the petitioners. Moreover, the only allegation against petitioner no. 2 is that she accompanied petitioner no. 1 at the time of taking amount in question but the aforesaid fact has not been stated by the witnesses in course of enquiry which is evident from perusal of Anneuxre-5 series to this petition. In the light of aforesaid discussions, I am of the opinion that learned counsel appearing for the petitioners has rightly submitted that no case under Section 420 of the Indian Penal Code is made out even the averments of the complaint petition and materials available on the record are taken into consideration and the continuance of proceeding of Complaint Case No. 1978 of 2008 is nothing but only the abuse of process of the law. Thus, on the basis of reasons stated above, this petition is allowed and the impugned order dated 02.03.2009 passed in Complaint Case No. 1978 of 2008 is, hereby, quashed. In the manner as stated above, this petition stands disposed of. Let this order be communicated to the concerned court for needful. SHAHZAD ( Hemant Kumar Srivastava, J.)