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Wasim Ahmad v/s State of Bihar

    Decided On, 16 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE GHANSHYAM PRASAD

    For the Appearing Parties: --------



Judgment Text

GHANSHYAM PRASAD, J.

(1.) Heard.

(2.) This application under Section 482 Cr.P.C. has been filed to quash the order dated 27.4.2006 passed by Sessions Judge, Buxar in Cr.Revision No. 190 of 2005 and Cr. Revision No. 5 of 2006 as well as order dated 6.12.2005 passed by S.D.J.M., Buxar In Complaint Case No. 528C of 2000, trial No. 399 of 2005. The S.D.J.M. vide above order has rejected the petition of the petitioners fur discharge which was later on confirmed by the learned Sessions Judge vide above o

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rders.

(3.) The allegation is that the petitioners have soma lands in Darjiling, West Bengal. On 5.11.1993 the complainant/opposite party No. 2 gave Rs. 80,000/- through cheque to the petitioners for plantation of tea on partnership basis. According to the term in profits, the opposite party was to get equal share to that of the petitioners.

(4.) However, it never happened and the entire money of the complainant was misappropriated by the petitioners and inspite of repeated demands, it was not returned.

(5.) It appears that the opposite party No. 2 lodged police case bearing Buxar P.S. Case No. 224 of 1996 against the petitioners. The same vas investigated by the police and ultimately, final report was submitted vide Report No. 73 of 1997 as mistake of fact. However, on protest petition, the aforesaid complaint case was registered after three years upon which the lower court took cognizance under Sections 406 and 420/34 of the I.P.C.

(6.) The submission of the learned Counsel for the petitioners is that the entire case is false and baseless. The real fact is that the petitioner No. 1 had business of scrap goods. The opposite party No. 2 had purchased 11.6 MT of scrap goods in the year 1993. Part payment was made in cash as well as through cheque. However, rest amount is still due. This false case was filed in order to grab the due and save himself from prosecution. It is further submitted that the opposite party No. 2 has already filed Money Suit No. 2 7 of 1996 for recovery of the said amount. Since matter relates to civil dispute for realisation of money as well as business transaction the prosecution of the petitioners is misuse of process of the court. It has been filed with ulterior and oblique motive just in order to realise the alleged dues by force. In support of his contention, the learned Counsel for the petitioners relied upon a decision of the apex court reported in 2006 A.I.R. S.C.W. 3830 (Indian Oil Corporation v. N.E.P.C. India Ltd.) as well as 2006 (3) PLJR 331 (M.L. Dalmiia and Company Ltd. v. The State of Bihar and Anr.).

(7.) On the other hand, it is submitted by the learned Counsel for the opposite party that at the stage of cognizance, the petitioners moved before the Hon'ble court through Cr.Misc. No. 24090 of 2002 which was selected vide order dated 3.9.2004. Therefore, now it is not open for the petitioners to re-agitate the matter again.

(8.) It is true that earlier the petitioners moved before the Hon'ble Court to quash the order of cognizance but the same was refused. But in my view, it is not a bar to consider the matter again in the light of scope of Section 245 Cr.P.C. The scope of 204 Cr.P.C. and 245. Cr.P.C. are entirely different. Under Section 204. Cr.P.C cognizance can be taken only on the basis of sufficient or prima facie ground for proceeding against the accused it runs as follows:

Section 204. (1) If in the opinion of a Magistrate taking cognizance of offence there is sufficient ground for proceeding, and the case appears to be----

(9.) However, for charge and discharge, the court has to consider the evidence whether, if unrebutted is sufficient for conviction or not. Section 245(1) Cr.P.C. runs as follows:

Section 245.(1) If. upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharhge him.

(10.) Therefore, at the stage of charge the matter is to be considered on different tooting than for the purpose of cognizance. Hence, rejection of earlier Cr.Misc. which was filed against the cognizance is no bar against the discharge of the petitioners.

(11.) Since the last order passed in earlier in Cr.Misc. concept of law has radically been changed. Change has been attributed to the growing tendency to convert each civil disputes into criminal cases. The Hon'ble apex court in above cited decision on has not only deprecated such tendency but also directed the court to take recourse of Section 250 of the Cr.P.C. in such nature of cases. In the present case, the opposite party No. 2 has already taken recourse of civil suit which is still pending. The police after investigation also submitted final report has a mistake of fact. In this view of the matter. It would be misuse of process of the court to allow this case to continue further.

(12.) Thus, having regard to the facts and circumstance as well as the legal position this application is allowed and the impugned orders are hereby quashed
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