MITHILESH KUMAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole accused of Complaint Case No. 1727(C) of 2006 through this application has prayed for the quashing of the entire allegedly malicious, vexatious and frivolous prosecution arising from the said complaint including the order dated 6.6.2007 passed therein by Sri A.K Singh, Judicial Magistrate, First Class, Patna, whereby he has taken cognizance of offences under Sections 405 and 504 I.P.C. against the petitioner.

(2.) THE complainant, one Guru Prasad Singh, impleaded herein as O.P. No. 2, filed the aforesaid complaint case on 19.6.2006 alleging inter alia that he was running a business of readymade garments shop in the name and style of "Ashoka Dresses" in the tenanted premises of the petitioner on monthly rental since the past 40 years and he was paying the monthly rental regularly. It is further alleged that the petitioner approached him and gave out that since the shop premises was a very old structure it required renovation and for the purpose money was required and as per demand the complainant arranged Rs. 50,000/ - and paid the same to the petitioner through cheque no. 029066 dated 16.1.2006 of the Central Bank of India, Birla Mandir Branch. The said cheque was drawn in the name of Parijat Sinha, the son of the petitioner. The complainant demanded a receipt which was assured to be given on the following day. It is further alleged that on 17.6.2006 when the complainant was sitting in his shop the petitioner alongwith 5 -6 unknown others arrived on a white Maruti car and tried to evict him illegally and forcibly but on bulla being raised, neighbours and passersby arrived and on their intervention the petitioner with his hench men fled away. The further case of the complainant is that the petitioner was misappropriating the aforesaid amount and has cheated him by misrepresentation that after receiving the amount he would provide him with a well furnished newly constructed shop premises for his business purposes but was in fact evading the same with mala fide intentions and as such the petitioner was liable to face prosecution under Sections 406, 420, 323, 504 I.P.C. However, after due inquiry under Section 202 Cr.P.C. the learned Magistrate took cognizance only under Sections 406 and 504 I.P.C.

(3.) IN R.P. Kapur V/s. State of Punjab, (AIR 1960 SC 966) the Apex Court took pains to summarize some categories of cases where the inherent power could and should be exercised to quash the proceedings: (i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) Where the allegations in the first information report or complaint taken at the face value and accepted in their entirely do not constitute the offence alleged; (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.