ASHOK KUMAR RAY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Sri Gopal Govind Mishra, learned counsel for the petitioner, learned Addl. Public Prosecutor as well as Sri Pranab Kumar learned counsel, who has appeared on behalf of the informant/Opp. Party No. 2 on instruction of Sri Anant Kumar, learned counsel for Opp. Party No. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 31.8.2010 passed by the learned Chief Judicial Magistrate, Katihar in Katihar P.S. Case No. 142 of 2009. By the said order, the learned Magistrate has taken cognizance of offence (sic--u/ss.?) 406, 420, 379 and 506 of the Indian Penal Code.

(2.) Short fact of the case is that Opp. Party No. 2 initially filed a complaint in the Court of the learned Chief Judicial Magistrate, Katihar, which was subsequently referred to the police under Section 156(3) of the Code of Criminal Procedure for its registration and investigation of the case and thereafter, an F.I.R. vide Katihar Town P.S. Case No. 142 of 2009 was registered for the offence under Sections 406, 420, 379 and 506 of the Indian Penal Code. The case was investigated and after collecting the evidence corroborating the commission of alleged offences, charge-sheet was submitted by the police. The learned Magistrate by the impugned order has taken cognizance of offence, as mentioned above. In sum and substance, it was alleged by the informant in the F.I.R. that the petitioner was a petty contractor and he had taken works order from the Minor Irrigation Department. Thereafter, the petitioner entered into an agreement with the informant and one another. As per agreement, the work was to be executed by the informant and one another person and they were also required to meet the expenses for total amount of Rs. 42,35,508/-. As per internal agreement, the petitioner was required to make payment after receiving the payment from the Government. It was alleged that after completion of 70% works, certain payments were made through cheque, which was received by the petitioner, but fraudulently only some amount was paid and some amount was not paid to the informant. It was alleged that in a calculated manner, the petitioner had persuaded the informant for executing the work and after receipt of payment from the Government, money was not paid to the informant. It has also been disclosed that when the informant started demanding money, the petitioner with hired criminals had committed another offences and Rs. 25,000/- was forcibly taken from the informant by pointing revolver by the accused persons. During investigation, the allegation in respect of fraud as well as commission of offence under Sections 379 and 506 of the Indian Penal Code was also found true and charge-sheet was submitted and thereafter the learned Magistrate has passed order of cognizance.

(3.) Sri Gopal Govind Mishra, learned counsel for the petitioner, while assailing the impugned order, submits that once there was an agreement in between the petitioner and the informant, there was no question for initiating criminal prosecution. He submits that it was a purely civil dispute and the informant in a civil dispute has given criminal colour and criminal case was instituted. He further submits that the petitioner has already paid Rs. 14 Lacs to the informant. On the second part of accusation, it was argued that the allegation of commission of offence under Sections 379 and 506 of the Indian Penal Code was only an ornamental and, as such, the learned Magistrate was not required to proceed with the case. In support of his argument that in a civil dispute, criminal prosecution cannot be initiated, the learned counsel for the petitioner has relied on Judgments reported in (i) ; Deepak Jain vs. State of Bihar & Ors., 2009 3 PLJR 1061 (ii) M/s. Indian Oil Corporation vs. N.E.P.C. & Ors., 2006 AIR(SC) 2780 and (iii) Inder Mohan Goswami & Anr. vs. State of Uttaranchal & Ors, 2008 AIR(SC) 251. He submits that time without number it has been reiterated by this Court as well as the Apex Court that in civil dispute, criminal prosecution may not be allowed to proceed. On the aforesaid grounds, learned counsel for the petitioner has prayed for setting aside the order of cognizance.