IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.63523 of 2018

Arising Out of PS. Case No.-1454 Year-2017 Thana- WEST CHAMPARAN COMPLAINT
District- West Champaran
======================================================
Lakshmi Kanta Mohanty Son of late Adwaita Prasad Mohanty R/o Salt Lake
City II, P.S. Bidhannagar, Distt. Kolkata W.B, 700091

... ... Petitioner/s

Versus
1. State Of Bihar and Anr
2. Ranju Kumari Wife of Shri Gopal Thakur R/o Gaislal Chowk Ward No. 10,
Purani Gudri, P.S. Bettiah Town, District- West Champaran.

... ... Opposite Party/s

======================================================
Appearance :
For the Petitioner/s : Mr. Sandip Kumar,
Mr.Alok Kumar @ Alok Kr Shahi, Advocates.
For the Opposite Party/s : Mr.Sri Chandrasen Prasad Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER

9 16-04-2019 Asking for quashing of the order dated 10.05.2018

passed by CJM, West Champaran at Bettiah in complaint case

no. 1454/2017 whereby and whereunder, petitioner along with

others has been summoned to face trial for an offence

punishable under Section 406, 323, 504/34 of the IPC, instant

petition has been preferred.

2. OP No.2/Complainant filed a complaint petition

1454/2017 on 02.08.2017 showing the date of occurrence as

25.07.2017 at about 11.30 AM against the Branch Manager,

SBI, Surveyor, Regional Manager, Commercial Claim of the

SBI, Regional Manager, SBI, General Insurance Company

divulging the fact that she had taken loan from SBI, Bazar
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Branch to the tune of Rs. 9,50,000/- under self employment

scheme whereupon, she has opened Ranju Readymade

Garments, at her house. It has been insured under SBI General

Insurance Scheme which happens to be sister concern of the

SBI. On account of electrical short-circuit, the shop gutted on

08.05.2015 as a result of which, cloth, apparel, ornaments,

precious stones got burnt causing loss to the tune of Rs.

11,70,000/-. Accordingly, police was informed. FIR was

registered. Complainant was made for claim before the SBI

General Insurance Company and since thereafter, although, they

assured but uptil now, they have not allowed claim. She has also

disclosed her Policy No. as 2867816 as well as Complaint

No.221607. Being frustrated over conduct of the accused

persons, she served advocate notice on 07.07.2017 over local

Bank Manager, whereupon, Branch Manager called upon her on

25.07.2017 where she had gone along with her husband. She

had further disclosed that all the accused persons were sitting

since before. They offered chair to the complainant and her

husband and then, the Branch Manager asked for Rs. 2 Lakhs as

bribe. On protest, all the accused persons abused and further

threatened that her claim will not be allowed unless payment is

made. They have also thrashed the complainant as well as her

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husband and ousted them from the chamber.

3. The learned CJM kept the complaint under

personal file for holding an enquiry under Section 202 CrPC and

concluding the same, by the order impugned, summoned the

petitioner and others, hence this petition.

4. It has been submitted on behalf of the petitoner

that none of the Sections whereunder cognizance has been

taken, is made out against the petitioner because of the fact that

there was no entrustment specially in favour of petitioner, in

likewise manner, is not supported from the S.A. as well as

statement of the witnesses. Apart from this, from the column of

the accused persons shown in the complaint petition petitioner’s

place of posting Kolkatan is found admitted and further, his

presence at the concerned station would have been properly

shown because of the fact that being at such a high rank, his

presence was not at all expected at that very place nor, he had

visited in or around the alleged date of occurrence within Bihar

province what to talk about the place of occurrence.

Furthermore, it has also been submitted that out and out the

allegation suggest it as a malicious one as a pressurized tactics

to coerce the officials to pass unjustified claim of OP No.2. It

has further been submitted that reasonable claim has already

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been allowed which the OP No.2 is not willing to accept, on the

other hand, took a twist by filing complaint case.

5. The real fact is that OP No.2/Complainant, under

ill design to digest the loan amounts, got the activity done and

then claimed for total reimbursement which has been directed

by, the Surveyor who visited the place, inspected the same,

asked for relevant receipts as supportive document in order to

properly assess the storage of the apparels, clothes appertaining

to such a huge amount whereunder she failed and then, after

having report, her claim was allowed but, not as per her

expectations, so in order to coerce as well as in revengeful

manner got his case filed against top to bottom.

6. Apart from this, it has also been submitted that

non approval of claim amount as her desirability of the OP/2 is

the main crux which, is found duly redressable under Consumer

Protection Act. That being so, the complaint would not survive,

consequent thereupon, the order impugned is non sustainable in

the eye of law and is accordingly, fit to be set aside.

7. Learned APP as well as learned counsel

representing OP No.2 while regressing the points having been at

the end of the petitioner, have submitted that at the present

stage, only prima facie case has to be seen, which is found

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properly manifest from the order impugned. Hence, instant

petition loses its relevancy. It has also been submitted that from

Annexure-2, it is evident that the availability of goods at the

store has properly been attested by the State Bank of India,

found worth of Rs. 7,32,750/- which could have more than

prima facie evidence, but with a dishonest intention, to coerce

the OP No.2 to pay a bribe of Rs. 2 Lacs which the OP No.2

declined, treated in a manner as disclosed, warranting criminal

prosecution. Hence, petition is fit to be dismissed.

8. Now-a-days, the mode of litigation has changed.

Because of the fact that civil litigations remain pending for

years together, the orders of Consumer Court, in majority of the

cases, are found toothless irrespective of having relevant

provisions and also took him for its final adjudication

whereupon, parties invented short cut method by launching a

criminal proceeding and for that, each and every activity even

having no concerned are brought under ambit of the criminal

prosecution. In some case, out of revenge, malicious criminal

prosecution is being launched, in some cases with ulterior

motive and that happens to be reason behind that in spite of

acknowledging the settled principle of law that at the stage of

performance of Section 190 CrPC, only prima facie case has to

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be seen and even acknowledging that the order satisfies the

ingredients, the whole prosecution including order so passed

under Section 190 CrPC came under the scrutiny and, to

identify the same, criterion have been laid down and which, till

today commands the field. For better appreciation, those

criterion are quoted hereinbelow which has been laid down in

the case of State of Hariyana & Ors. Versus Bhajan Lal & Ors

as reported in AIR 1992 SC 604, Para-102:-

“(1) Where the allegations

made in the first information
report or the complaint, even if
they are taken at their face
value and accepted in their
entirety do not prima facie
constitute any offence or make
out a case against the accused.
(2) Where the allegations
in the first information report
and other materials, if any,
accompanying the FIR do not
disclose a cognizable offence,
justifying an investigation by
police officers under Section
156(1) of the Code except under
an order of a Magistrate within
the purview of Section 155 (2)
of the Code.
(3) Where the
uncontroverted allegations
made in the FIR or complaint
and the evidence collected in
support of the same do not
disclose the commission of any
offence and make out a case
against the accused.
(4) Where, the allegations
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in the FIR do not constitute a

cognizable offence but
constitute only a non-
cognizable offence, on
investigation is permitted by a
police officer without an order
of a Magistrate as
contemplated under Section
155(2) of the Code.
(5) Where the allegations
made in the FIR or complaint
are so absurd and inherently
improbable on the basis of
which no prudent person can
ever reach a just conclusion
that there is sufficient grounds
for proceedings against the
accused.
(6) Where there is an
express legal bar engrafted in
any of the provisions of the
Code or the concerned Act
(under which a criminal
proceedings is instituted) to the
institution and continuance of
the proceedings and/or where
there is a specific provision in
the Code or the concerned Act,
providing efficacious redress
for the grievance of the
aggrieved party.
(7) Where a criminal
proceeding is manifestly
attended with malafide and/or
where the proceeding is
maliciously instituted with an
ulterior motive for wreaking
vengeance on the accused and
with a view to spite him due to
private and personal grudge.”

9. The commercial transaction invariably not even

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attracting the slightest fragrance of the criminal activity, are

twisted, modelled, crafted and brought under criminal

prosecution though in some cases may justify which also came

to subject of adjudication by the Hon’ble Apex Court in Indian

Oil Corpn. v. NEPC India Ltd as reported in (2006) 6 SCC 736

wherein it has been held as follows:-

“12. The principles relating to exercise of

jurisdiction under Section 482 of the Code of
Criminal Procedure to quash complaints and
criminal proceedings have been stated and
reiterated by this Court in several decisions. To
mention a few - Madhavrao Jiwaji Rao Scindia v.
Sambhajirao Chandrojirao Angre [1988 (1) SCC
692], State of Haryana vs. Bhajanlal [1992 Supp (1)
SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh
Gill [1995 (6) SCC 194], Central Bureau of
Investigation v. Duncans Agro Industries Ltd.,
[1996 (5) SCC 591], State of Bihar vs. Rajendra
Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v.
State NCT of Delhi, [1999 (3) SCC 259], Medchl
Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.
[2000 (3) SCC 269], Hridaya Ranjan Prasad Verma
v. State of Bihar [2000 (4) SCC 168], M. Krishnan
vs Vijay Kumar [2001 (8) SCC 645], and Zandu
Phamaceutical Works Ltd. v. Mohd. Sharaful
Haque [2005 (1) SCC 122]. The principles, relevant
to our purpose are :
(i) A complaint can be quashed where the
allegations made in the complaint, even if they are
taken at their face value and accepted in their entirety,
do not prima facie constitute any offence or make out
the case alleged against the accused.
For this purpose, the complaint has to be examined as
a whole, but without examining the merits of the
allegations. Neither a detailed inquiry nor a meticulous
analysis of the material nor an assessment of the reliability
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or genuineness of the allegations in the complaint, is

warranted while examining prayer for quashing of a
complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with malafides/malice for wreaking vengeance or to
cause harm, or where the allegations are absurd and
inherently improbable.
(iii) The power to quash shall not, however, be
used to stifle or scuttle a legitimate prosecution. The
power should be used sparingly and with abundant
caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence alleged.
If the necessary factual foundation is laid in the
complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of the
complaint is warranted only where the complaint is so
bereft of even the basic facts which are absolutely
necessary for making out the offence.
(v) A given set of facts may make out : (a) purely
a civil wrong; or (b) purely a criminal offence; or (c) a
civil wrong as also a criminal offence. A commercial
transaction or a contractual dispute, 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 a civil proceedings are different
from a criminal proceeding, the mere fact that the
complaint relates to a commercial transaction or
breach of contract, for which a civil remedy is
available or has been availed, is not by itself a ground
to quash the criminal proceedings. The test is whether
the allegations in the complaint disclose a criminal
offence or not.
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10. Recently, on account of some sort of business

transaction asking prosecution under Section 406 CrPC has been

subject to adjudication in Anand Kumar Mohatta v. State

(Govt. of NCT of Delhi), Department of Home as reported in

2019(1) BLJ 128 (SC) wherein the case of Indian Oil Corpn. v.

NEPC India Ltd (supra) and criterion so laid down under State

of Hariyana & Ors. Versus Bhajan Lal & Ors (supra) have

also been properly dealt with and then it has been held as

follows:-

“27. We are of the opinion that the present case

falls under the 1st, 3rdand 5th category set out in
the para 102 of the judgment in the case of Bhajan
Lal (supra). In such a situation, the High Court
erred in dismissing the petition of the Appellants
filed under Section 482 of Cr.P.C. This was a fit
case for the High Court to exercise its in
herentpower under Section 482 of Cr.P.C. to quash
the FIR.

28.It is necessary here to remember the words of

this Court in State of Karnataka v. L. Muniswamy
and others (1977) 2 SCC 699 which read as
follows: -

“7......In the exercise of this

wholesome power,the High Court is entitled
to quash a proceeding if it comes to the
conclusion that allowing the proceeding to
continue would be an abuse of the process of
the Court or that the ends of justice require
that the proceeding ought to be quashed. The
saving of the High Court's inherent powers,
both in civil and criminal matters, is
designed to achieve a salutary public
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purpose which is that a court proceeding

ought not to be permitted to degenerate into
a weapon of harassment or persecution. In a
criminal case, the veiled object behind a
lame prosecution, the very nature of the
material on which the structure of the
prosecution rests and the like would justify
the High Court in quashing the proceeding
in the interest of justice.....”

28. We find that the prosecution is

mala fide, untenable and solely intended to
harass the Appellants. We are forfeited in view of
the Respondent not having made any attempt to
recover the deposit of Rs. One Crore through a
civil action.
29.We have, therefore, no hesitation in
quashing the FIR and the charge sheet filed
against the Appellants. Hence, the FIR
No.0139/2014 dated 20.08.2014 and charge sheet
dated 03.08.2018are hereby quashed.

11. In Himachal Pradesh Cricket Association v.

State of Himachal Pradesh as reported in 2019 (2) BLJ 181

(SC) wherein the prosecution has been under Prevention of

Corruption Act along with other allied offences, subject to

consideration and during course thereof, again the relevant

citations were taken into consideration concerning the present

controversy and then it has been observed as follows:-

46. We are conscious of the scope of powers

of the High Court under Section 482 of Cr.P.C.
The inherent jurisdiction is to be exercised
carefully and with caution and only when
exercise is justified by the tests specifically laid
down in the Section itself. Further, inherent
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power under this provision is not the rule but it

is an exception. The exception is applied only
when it is brought to the notice of the Court that
grave miscarriage of justice would be committed
if the trial is allowed to proceed where the
accused would be harassed unnecessarily. If the
trial is allowed to linger when prima facie it
appears to the Court that the trial could likely to
be ended in acquittal. It is, for this reason,
principle which is laid down by catena of
judgments is that the power is to be exercised by
the High Court either to prevent abuse of
process of any court or otherwise to secure the
ends of justice. However, whenever it is found
that the case is coming within the four corners of
the aforesaid parameters,the powers possessed
by the High Court under this provision are very
wide. It means that the Court has to undertake
the exercise with great caution. However, the
High Court is not to be inhibited when the
circumstances warrant exercise of such a power
to do substantial justice to the parties. This
provision has been eloquently discussed in
Bhajan Lal's case which has become locus
classicus. Principle Nos. (i) and (ii) of Indian Oil
Corporation are, therefore,become applicable.
The entire subject matter has been revisited ina
recent judgment in Vineet Kumar and some of
the discussion therein which takes note of earlier
judgments is reproduced below:

"26. A three-Judge Bench in State of

Karnataka v. M. Devendrappa [State of
Karnataka v. M. Devendrappa, (2002)3 SCC 89 :
2002 SCC (Cri) 539] had the occasion to consider
the ambit of Section 482 CrPC. By analysing the
scope of Section 482 CrPC, this Court laid down
that authority of the Court exists for advancement
of justice and if any attempt is made to abuse that
authority so as to produce injustice the Court has
power to prevent abuse. It further held that Court
would be justified to quash any proceeding if it
finds that initiation/continuance of it amounts to
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abuse of the process of court or quashing of these

proceedings would otherwise serve the ends of
justice. The following was laid down in para 6:
(SCC p. 94)

“6. ... All courts, whether civil or criminal

possess, in the absence of any express provision,
as inherent in their constitution, all such powers
as are necessary to do the right and to undo a
wrong in course of administration of justice on
the principle quando lex aliquid alicui concedit,
concederevidetur et id sine quo res ipsae esse
non potest (when the law gives a person anything
it gives him that without which it cannot exist).
While exercising powers under the section,
thecourt does not function as a court of appeal or
revision. Inherent jurisdiction under the section
though wide has to be exercised sparingly,
carefully and with caution and only when such
exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex
debito justitiae to do real and substantial justice
for the administration of which alone courts
exist. Authority of the court exists for
advancement of justice and if any attempt is
made to abuse that authority so as to produce
injustice, the court has power to prevent abuse. It
would be an abuse of process of the court to
allow any action which would result in injustice
and prevent promotion of justice. In exercise of
the powers court would be justified to quash any
proceeding if it finds that initiation/continuance
of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise
serve the ends of justice. When no offence is
disclosed by the complaint, the court may
examine the question of fact. When a complaint
is sought to be quashed, it is permissible to look
into the materials to assess what the complainant
has alleged and whether any offence is made out
even if the allegations are accepted in toto.”

27. Further in para 8 the following was stated:

(Devendrappa case [State of Karnataka v. M.
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Devendrappa, (2002) 3 SCC89 : 2002 SCC (Cri)

539] , SCC p. 95)

“8. ... Judicial process should not be an

instrument of oppression, or, needless
harassment. Court should be circumspect and
judicious in exercising discretion and should take
all relevant facts and circumstances into
consideration before issuing process, lest it
would be an instrument in the hands of a private
complainant to unleash vendetta to harass any
person needlessly. At the same time the section is
not an instrument handed over to an accused to
short-circuit a prosecution and bring about its
sudden death. The scope of exercise of power
under Section 482 of the Code and the categories
of cases where the High Court may exercise its
power under it relating to cognizable offences to
prevent abuse of process of any court or
otherwise to secure the ends of justice were set
out in some detail by this Court in State
ofHaryana v. Bhajan Lal [State of Haryana v.
Bhajan Lal, 1992Supp (1) SCC 335 : 1992 SCC
(Cri) 426].”
In the instant case, the High Court simply
noted those judgments which put a note of
caution in exercising the powers under Section
482 Cr.P.C. to quash such proceedings and
dismissed the petition with a shallow
examination of the case,thereby glossing over the
material facts (which are noted hereinabove) and
failing to examine that these pertinent aspects
were sufficient to demonstrate that no criminal
case was made out, particularly when all the
concerned officers, who had taken the decision,
were let off on the ground that they had not
committed any wrong.

12. After having the settled principle at the backdrop,

coming to the instant prosecution, after going through the

relevant documents, it is evident that the prosecution of the

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petitioner appears to be mala fide, malicious with oblique

motive, as the presence of petitioner in a way as indicated by the

OP No.2 did not inspire authenticity, which the OP No.2 would

have at least even in superficial manner. Accordingly, the same

is set aside, however, only to the extent of petitioner. Petition is

allowed.

(Aditya Kumar Trivedi, J)

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