Anand Mohan Shukla & Ors. vs The State Of Bihar & Anr.

The present petition has been preferred under Section 482 of the Code of Criminal Procedure (in short the Cr.P.C.), seeking quashing of the order dated 16.02.2016 passed by the learned Chief Judicial Magistrate, Muzaffarpur, in connection with Muzaffarpur Town P.S. Case No. 102 of 2015 (arising out of Complaint Case No. C-286 of 2015), whereby cognizance has been taken of the offences punishable under Sections 420, 406, 323, 307 and 380 read with Section 34 of the Indian Penal Code (in short the IPC). The impugned order as well as the allegations forming the substratum of the criminal proceeding are available on the record.

The prosecution case, as emerging from the complaint and the materials collected during investigation, is that the complainant alleged that petitioner No. 1 had received a sum of Rs.6,00,000/- from him on the representation that the said amount would be utilized for arranging the marriage of his daughter. It is alleged that, in respect of the aforesaid transaction, a document was executed on stamp paper dated 19.05.2010 in the presence of witnesses, bearing the signature and thumb impression of petitioner No. 1. According to the complainant, it was agreed that the aforesaid amount would be repaid within the stipulated period upon sale of land. However, despite expiry of the agreed period and repeated demands, petitioner No. 1 allegedly failed to repay the amount and continued to evade payment on one pretext or the other.

It is further alleged that, eventually, the complainant caused a legal notice dated 04.01.2015 to be served upon the accused persons, calling upon them to discharge the aforesaid monetary liability. The prosecution alleges that, instead of making payment, the accused refused to acknowledge the liability and sent a reply to the said notice denying the claim. Thereafter, on 02.02.2015 at about 3:00 P.M., when the complainant was allegedly present alone at his residence, the accused persons came there, abused him and, upon his objection to their conduct, assaulted him with fists and slaps.

The specific allegation is that petitioner No. 1 caught hold of the complainant, while petitioner No. 3 allegedly caught hold of his hand and attempted to strangulate him with a towel, with an intention to cause his death. It is alleged that, upon hearing the commotion, the witnesses arrived at the place of occurrence, whereupon the accused persons fled from the spot. It is further alleged that, while fleeing, petitioner No. 3 forcibly took away a sum of Rs.2,500/- from the pocket of the complainant, whereas petitioner No. 2 threatened him with dire consequences and allegedly warned him to abandon his claim for the money, failing which he would be killed.

On the basis of the aforesaid allegations, the complainant approached the police, pursuant to which Muzaffarpur Town P.S. Case No.102 of 2015 came to be instituted. Upon completion of investigation, the police submitted charge-sheet on 06.01.2016 vide charge-sheet No. 46 of 2016 under Sections 420, 406, 323, 307 and 380 read with 34 of the I.P.C. against the accused persons for the offences alleged. Thereafter, the learned Chief Judicial Magistrate, Muzaffarpur, vide order dated 16.02.2016, took cognizance of the offences punishable under Sections 420, 406, 323, 307 and 380 read with Section 34 of the I.P.C., which has given rise to the present petition.

Mr. Jai Prakash Verma, learned counsel appearing on behalf of the petitioners, assails the impugned criminal proceeding primarily on the ground that the same is actuated by mala fides and has been instituted as a counterblast to an earlier criminal case lodged, at the instance of the petitioners. It is submitted that petitioner No. 4 had already instituted Muzaffarpur Town P.S. Case No. 65 of 2015 dated 01.02.2015 in relation to an occurrence dated 30.01.2015 against the informant and other persons.

Learned counsel for the petitioners further submits that a sum of Rs.10,00,000/- (Rupees Ten Lakh) was due and payable by the informant (opposite party No. 2) to the father of petitioner No. 4. It is the specific case of the petitioners that, when the aforesaid amount was demanded by father of petitioner No. 4, the informant, i.e., opposite party No.2 along with 25-30 unknown persons entered in the house of petitioner No. 4 on 30.01.2025 and allegedly assaulted petitioner No. 4 and his family members. It is further asserted that the ornaments belonging to the mother and sister of petitioner No. 4 were allegedly snatched and a sum of Rs.16,000/- was also taken from the pocket of petitioner No. 4. He further submits that the subsequent institution of the present case is nothing but an attempt to create a defence to the earlier proceeding and to exert pressure upon them in connection with the underlying monetary dispute.

It is, therefore, contended that the existence of cross-cases and the chronology in which the respective proceedings came to be instituted clearly demonstrate that the present prosecution is retaliatory in nature and constitutes a counterblast to the earlier criminal proceeding. Learned counsel submits that the allegations relating to attempt to murder, theft and assault have deliberately been incorporated so as to impart a serious criminal complexion to a dispute which, in substance, arises out of competing monetary claims between the parties.

Learned counsel for the petitioners further submits that the alleged transaction of Rs.6,00,000/- is itself seriously disputed and that the foundational ingredients necessary to constitute the offences of cheating under Section 420 of the I.P.C. or criminal breach of trust under Section 406 of the I.P.C. are conspicuously absent. It is argued that mere failure or refusal to repay an alleged loan or monetary liability, in the absence of any material indicating dishonest or fraudulent intention at the inception of the transaction, would not, by itself, constitute the offence of cheating.

It is also contended that the materials collected during investigation do not furnish any credible or cogent basis for the allegation that the occurrence dated 02.02.2015 took place in the manner alleged by the complainant. In particular, according to the petitioners, there is no dependable material substantiating the allegation of an attempt to strangulate opposite party No. 2 or the alleged theft of Rs.2,500/-. The petitioners accordingly submit that the allegations are inherently false, exaggerated and have been levelled with an ulterior motive to harass them and to give a criminal colour to the existing monetary dispute.

Per contra, Mr. Atul Chandra, learned Additional Public Prosecutor for the State, has vehemently opposed the prayer for quashing the order impugned. It is submitted that the learned Chief Judicial Magistrate, Muzaffarpur upon due consideration of the materials collected during investigation, has rightly exercised jurisdiction and taken cognizance of the offences disclosed against the petitioners. According to the learned counsel for the State, the allegations made in the complaint, coupled with the materials collected during investigation, prima facie, disclose the commission of the offences alleged and, therefore, no interference under the inherent jurisdiction of this Court is warranted at this stage.

Despite service of notice, including substituted service by way of publication in the newspaper, opposite party No. 2 has chosen not to appear before this Court.

Heard the learned counsel for the respective parties and having given careful consideration to the allegation made in the F.I.R. and the complaint case as well as rival submissions advanced on behalf of the respective parties and documents brought on record, I proceed to examine the allegations in view of the materials brought on record and in terms of the settled legal principles as enunciated by the Hon’ble Supreme Court of India in this respect.

The informant (opposite party No. 2), namely, Aditya Mohan Shukla is the nephew of petitioner No. 1, namely, Anand Mohan Shukla and cousin of petitioner Nos. 2, 3 and 4. Thus the parties in the present case are related to each other through blood and have been quarrelling over a monetary dispute pertaining to payment with respect to execution of registered sale deed.

Certain facts germane to the issues at hand are succinctly discussed hereinbelow in order to have the proper appreciation of the case, especially, with regard to the true nature of dispute between the parties, in order to analyze, as to whether any criminal offences is made out in terms of the allegations so narrated in the F.I.R. :-

Even the perusal of the instant F.I.R. registered as Muzaffarpur Town P.S. Case No. 102 of 2015 reveals that no allegation with respect to the offences under Sections 307 and 380 have been levelled. With respect to the offences under Sections 406 and 420 only oral allegations have been made without enclosing any documentary proof for entrustment of any kind of money. Save and except the allegation of taking loan of Rs. 6,00,000/- from the opposite party No. 2 by petitioner No. 1, there is no allegation, at all, which could satisfy the ingredients of the offences under Sections 406 and 420 of the I.P.C.

Even in the charge-sheet, in the instant case, which was submitted by police vide charge-sheet No. 46 of 2016 dated 06.02.2016, no averments and evidence, with respect to the offences under Sections 307, 380, 406 and 420 of the I.P.C., have been mentioned rather only a generic statement of vague and omnibus nature have been levelled and charge-sheet has accordingly been submitted for the offences under Section 420, 406, 323, 307 and 380 read with Section 34 of the I.P.C. against the accused persons.

Curiously enough, the order dated 16.02.2016 taking cognizance, which has been impugned herein, reflects the total non-application of judicial mind on the part of the learned Chief Judicial Magistrate, Muzaffarpur as in his order dated 16.02.2016, the learned Chief Judicial Magistrate has not mentioned even any of the paragraph of the case diary wherefrom it could have been gathered that the evidence has come in course of investigation connecting the petitioners to the alleged crime for the offences under Sections 420, 406, 307 and 380 of the I.P.C. There is no whisper or mentioning of any evidence, at all, in the order taking cognizance.

Just as the charge-sheet report of the police, which is sum total of investigation, is also silent on the aforesaid charges of Sections 420, 406, 380 and 307 of the I.P.C., save and except generalized kind of statement, the learned Chief Judicial Magistrate seems to have copied the pattern of the Investigating Officer and he took cognizance of the offence, without even mentioning any shred of evidence, which could justify the summoning order.

Summoning an accused by taking cognizance of the offences is a very important step in a criminal prosecution initiated against a person because only thereafter Court proceeds to secure attendance of an accused to face trial. It must be reflective of proper application of judicial mind to the facts of a case which could justify such summoning order. The concept of cognizance is of vital importance in criminal jurisprudence because it acts as an official gateway from police investigation or private complaint to actual Court proceeding.

The word cognizance means “to take notice of”, when a Court take cognizance of a crime, it means that person against whom allegation has been levelled, is now set to face the criminal proceedings, on account of judicial notice of the offences, taken by the competent Court of criminal jurisdiction.

At this stage, Court has to apply all sorts of filter to sieve, to chaff and to peruse very carefully, in order to find out, whether allegations as has been levelled seeking implication of a person in a criminal case, for his trial or prosecution, are baseless or have some sort of veracity and substance in the same. Thus before issuing summons and warrants, there is a pre-condition in the form of satisfaction of the learned Trial Court that he must be satisfied, prima facie, before issuing any summoning order. The word prima facie, a latin phrase, means “at first sight or on the face of it” meaning thereby that the claim and evidence is sufficient to establish a fact and in order to reach a conclusion of being satisfied, prima facie, certain inquiries are made by the learned Courts.

In the case at hand, order taking cognizance is bereft of any sound reasoning, which reflects total non-application of judicial mind on account of it being devoid of any basis for proceedings against the accused persons.

In terms of the allegations as levelled in the instant F.I.R., no offences under Sections 420 or 406 are made out as none of the ingredients of the aforesaid Sections are satisfied in the case.

Section 406 of the Indian Penal Code to get attracted, there must be a criminal breach of trust, in terms of Section 405 of the Indian Penal Code. The essential ingredients for invoking Section 405 of the Indian Penal Code are enumerated hereunder :-

The basic and essential ingredients of the offence of cheating as defined under Section 420 of the Indian Penal Code are :-

Further, there is no allegation, at all, neither is there any evidence for invoking the offences committed under Section 307 of the I.P.C., in absence of any cogent credible and reliable material in the form of evidence and in absence of the same, summoning the accused to face trial under Section 307 of the I.P.C. is not only bad in law but is reflective of total recklessness and negligence on the part of the Investigating Agency in charge-sheeting the accused and also reflects total non-application of judicial mind by the learned Trial Court in summoning them to face trial for the charge under aforesaid Sections.

The instant case is an outcome and counterblast of the case lodged earlier by petitioner No. 4 against opposite party No. 2, for initiating a criminal prosecution against opposite party No. 2 who in order to settle scores, lodged a case without even approaching the police, in the Court of Chief Judicial Magistrate after delay of two days of the alleged date of occurrence, which shows the ulterior motive and retributive intention of opposite party No. 2.

This kind of practice in lodging cases as a counterblast, implicating the persons for having lodged cases against the informant or complainant, has been denounced and castigated by the Hon’ble Supreme Court of India in the case of Eicher Tractor Limited and Others Vs. Harihar Singh and Another, reported in 2008 16 SCC 763 wherein it has been categorically held that:-

Thus, in the backdrop of the factual and legal conspectus, the continuance of the case, at hand, bearing Muzaffarpur Town P.S. Case No. 102 of 2015 arising out of Complaint Case No. C-286 of 2015 would be an abuse of the judicial process and as such cannot be allowed to be continued in the interest of justice.

Consequently, the order dated 16.02.2016 whereby cognizance has been taken of the offences under Sections 420, 406, 323, 307 and 380 read with Section 34 of the I.P.C. passed by the learned Chief Judicial Magistrate, Muzaffarpur in connection with Muzaffarpur Town P.S. Case No. 102 of 2015 (arising out of the Complaint Case No. C-286 of 2015), is hereby quashed and set aside, qua the petitioners and all the consequent criminal proceedings emanating therefrom are also quashed and set aside.

Thus, this application is allowed in aforesaid terms.

Interlocutory application(s), if any, also stands disposed off accordingly.