Patna High Court
Ashok Singh vs The State Of Bihar on 26 June, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.56863 of 2021
Arising Out of PS. Case No.-122 Year-2020 Thana- THAKRAHA District- West Champaran
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1. ASHOK SINGH Son of Late Sri Raj Kishore Singh Resident of House No.
110, Balaji Nagar, P.S.- Pilani, Distt.- Bhopal, Madhya Pradesh, Native of
village - Shikta, Badgaon (Musrayi Tola), P.S.- Kubersthan, Distt.- Kushina-
gar, UP
2. Kaushalya Singh @ Kaushalya Wife of Ashok Singh Resident of House No.
110, Balaji Nagar, P.S.- Pilani, Distt.- Bhopal, Madhya Pradesh, Native of
village - Shikta, Badgaon (Musrayi Tola), P.S.- Kubersthan, Distt.- Kushina-
gar, UP
... ... Petitioners
Versus
1. The State of Bihar
2. Brijendra Kumar Son of Late Pram Hans Singh Resident of village - Dhoom
Nagar, Thakraha, P.S.- Bagaha, West Champaran.
... ... Opposite Parties
======================================================
Appearance :
For the Petitioners : Mr. Ashhar Mustafa, Advocate
For the State : Mr. Md. Arif, APP
For the Opp. Party No.2: Mr. Ramakant Sharma, Sr. Advocate
Mr. Rajesh Kumar, Advocate
Mr. Avinash Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
C.A.V. JUDGMENT
Date : 26-06-2025
The present application is preferred invoking the
inherent jurisdiction of this Court under section 482 of the Code
of Criminal Procedure, 1973 praying for quashing the F.I.R.
registered vide Thakraha P.S. Case No.122 of 2020 registered on
30.11.2020
for the offences under sections 406, 420, 467, 468,
504 and 506 read with section 34 of the Indian Penal Code.
2. The aforesaid F.I.R was instituted based on
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the written complaint dated 30.11.2020 by informant –
Brijendra Kumar (opposite party no.2). The brief facts relevant
for the present application is that the informant being a resident
of West Champaran district was engaged in agricultural work in
his village. It is alleged that a person from his maternal village
(nanihal) situated in the district of Siwan, namely, Chandra
Bhushan Singh, who was working as L.I.C agent in Bhopal
often used to visit the native village of the informant and
therefore, the informant came in contact with him, as his
acquaintance grew, the informant started visiting Bhopal where
the aforesaid Chandra Bhushan Singh was working. Being an
L.I.C. agent, Chandra Bhushan Singh had opened multiple
insurance policies of railway staffs and for collecting the
premium installments of such policies, he often visited Bhopal
railway station, where the informant would also accompany
him. It is further alleged that in the course of accompanying
Chandra Bhushan Singh to Bhopal railway station, in the year
2004, the informant met one Ashok Singh (petitioner no.1) who
was working as a T.T.E. in railway and was a resident of
village-Shikta Badgaon, P.S.- Kubersthan, District- Kushinagar
(UP) which is situated at a distance of about 15 Km. from the
native village of the informant. Whenever, the petitioner no.1
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used to visit his native village, he used to call the informant to
meet him. It is stated that with time the informant became
acquainted with the petitioner no.1.
2.1. It is alleged that in the year 2019 the
petitioner no.1 had told the informant that he had multiple
connections with the higher officials of the Indian Railways and
had assured him that he could help him in getting the license for
opening the shops at railway stations. The petitioner no.1 had
further asked the informant to ask some persons to join as
partners to facilitate the application process. It is further alleged
that the petitioner no.1 had demanded around Rs.51 lakhs in the
name of surcharge and other expenses for allocation of the
aforesaid license for the shops. Since the informant did not
have the amount demanded by the petitioner no.1, he borrowed
an amount of Rs.31,00,000/- from one of his friends, namely,
Deepak Sarraf, which was transferred in the bank account of the
informant. The informant also borrowed Rs.14,00,000/- from
his friends with an assurance that they would become partners
at the licenced vendor shop, once the licence is allocated in
proportion to their contribution towards the total amount.
2.2. It is next alleged that on 24.07.2019, the
petitioner no.1 and his wife (petitioner no.2) came to the village
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of the informant to collect the amount and in presence of several
persons, the informant gave an amount of Rs.35,00,000/- to the
petitioner no. 1 and drew a receiving agreement on a stamp
paper of Rs.1000/-. It is also alleged that since Rs.10,00,000/-
could not be withdrawn from the bank account of the informant,
he told the petitioner no.1 that he would send the same to the
bank account of the petitioner no.1 however the petitioner no.1
refused citing the reason to be in Government service and
alternatively asked the informant to transfer the remaining
amount in the bank account of his wife. Complying to the said
request of the petitioner no.1, the informant transferred the
remainder amount of Rs.10,00,000/- to the bank account of the
petitioner no.2 through the bank account of his niece. Therefore,
it is alleged that a total of amount of Rs.45,00,000/- was
given/transferred to the petitioners by the informant, which
according to the informant, can be verified from the bank
account statements.
2.3. It is also alleged that thereafter the petitioners
assured the informant that the allocation of the licence would be
finalized within two-three months, however, even after a lapse
of one year and two months, they failed to get the work done
and even they did not return the said amount. Ultimately, on
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23.09.2020, the informant came to the residence of the
petitioners in Bhopal and demanded his amount. Upon which,
the petitioners assured him that the amount will be given to him
on 24.09.2020. During the aforesaid time, the informant stayed
at the house of Chandra Bhushan Singh and when he went to
receive the amount on 24.09.2020, he was verbally abused and
assaulted by the petitioners and also threatened of dire
consequences, if the informant is seen again in Bhopal.
Thereafter, the informant returned back to Patna on 26.09.2020
and fell sick and after recovery from the illness, he filed the
present F.I.R.
3. Learned counsel for the petitioners submits
that the substance of allegation in the F.I.R. is that on being
dissuaded by petitioner no.1, the informant gave him
Rs.45,00,000/- for the allotment of license for opening shops at
railway station and the petitioner allegedly neither went through
with the allotment of the license nor returned the said amount. It
is thus clear that the F.I.R. was primarily registered for recovery
of money which was allegedly paid by the informant to the
petitioner no.1 for grant of license. The learned counsel for the
petitioners emphasized that for recovery of the alleged amount
paid to the petitioner no.1 the informant ought to have instituted
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a money suit before competent Court.
4. Learned counsel for the petitioners submits
that it is apparent from the bare reading of the F.I.R. that the
basic ingredients of the offences, as alleged in the F.I.R., are not
made out against the petitioners. He further submits that it goes
without saying that even as per the F.I.R. version, a huge sum of
money was allegedly paid to petitioner no.1 by the informant to
manage and secure issuance of license for opening of shops at
railways stations. As per the prosecution case, the petitioner
no.1 was allegedly responsible for backdoor management for
issuance of license. This exercise being on the face of it
unlawful would therefore not attract the rigors of section 406
and 420 IPC. It is a settled law that if the object of transaction is
illegal, it is not open for the party to either complain breach of
trust or cheating.
5. Learned counsel for the petitioners also
submits that although in addition to sections 406 and 420 of the
Indian Penal Code, the impugned F.I.R. is also registered under
sections 467 and 468 of the Indian Penal Code. However, it is a
matter of record that these sections cannot even remotely be
attracted in the present matter, even if the entire statements
made in the F.I.R. are taken to be true. These sections are
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attracted only when the case relates to forgery of a document
which purports to be valuable security, however, the entire case
does not involve any such allegation of forging any document
by the present petitioners.
6. Learned counsel for the petitioners has
placed relied upon the decision of the Hon’ble Supreme Court
rendered in the case of Mohd. Ibrahim vs. The State of Bihar,
reported in 2009 (8) SCC 751 and has submitted that in the
aforesaid decision the Hon’ble Supreme Court after a detailed
analysis of sections 467 and 471 referred to section 464 has
explained the meaning of “forgery”. Making of a false document
is sine qua non for commission of offence under section 467 of
the Indian Penal Code, and therefore the offence under section
467 is wholly not made out, the same position applies for
section 468 since from reading of the F.I.R. there is not even a
whisper regarding any forgery done by the petitioners. In the
present case, there is not even a single averment in the entire
F.I.R. to indicate towards such an act of making any false
document, as against the petitioners. It becomes clear that the
said section has been maliciously levelled by the prosecution to
add gravity to the case of the prosecution.
7. It has been submitted by learned counsel for
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the petitioners that in the FIR the informant claims that he
received Rs.20,00,000/- and Rs.11,00,000/- in his bank account
on 16.07.2019 and 23.07.2019 respectively which was
ultimately given to the petitioners on 24.07.2019 but on careful
examination of the bank statement of the informant enclosed
with the FIR, it is clear that although the above amount was
received in the bank account of the petitioner no.1 on the
aforementioned dates, there are only followed by major
withdrawals/transfers from his account between 15.07.2019 to
24.07.2019. Further, the details taken from the bank statement
of the informant is a conclusive piece of evidence that although
Rs. 31,00,000/- was received in his account, he had withdrawn
only Rs.3,00,000/- cash, which he can possibly claim to have
given to the petitioners. This account statement, thus, itself is
sufficient to completely falsify and demolished the claim of the
informant regarding alleged payment made to the petitioners.
8. It has further been submitted that there are
unimpeachable materials available on record to substantiate that
the informant designedly created forged instrument on an old
Non-Judicial Stamp Paper dated 07.12.2013 to exert criminal
pressure and for blackmailing the petitioners. It is important to
clarify at the outset that the aforesaid security does not bear the
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signature of petitioner no.1. Further, the signature of the
petitioner no.1 shown therein does not even bear remote
resemblance with his original signature which have been shown
in the passport, pan card and bank cheque of the petitioner no.1.
9. The learned Senior Counsel appearing for the
opposite party no.2 and the learned APP appearing for the State
have vehemently opposed the present application and have
supported the case of the prosecution. It is submitted on behalf
of opposite party no.2 that the offences, as alleged in the F.I.R.
are squarely made out against the petitioners and therefore they
do not warrant indulgence from this Court.
10. Learned Senior Counsel for the opposite
party no.2 has also submitted that in the present case, charge-
sheet has already been filed and therefore, at this stage, this
Court may not interfere with the F.I.R.
11. I have considered the submissions of the
parties and perused the materials available on record.
12. It is admitted by the informant in his written
complaint based on which present F.I,R came to be registered
that he had made the transfers to the petitioners in order to
obtain the licence for shops in the railway station. The petitioner
no. 1 being a T.T.E., had assured the informant that the licence
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would be granted in his favour through his influence and in
order to secure this licence, the informant states that the
petitioner no.1 had demanded a sum of Rs.51,00,000/- in the
name of expenses and surcharges. If this version of the F.I.R. is
taken to be true then the is act of the informant in obtaining the
license by giving an amount of Rs.51,00,0000/-is in itself
unlawful and illegal.
13. This Court in the case of Vijay Sharma and
Anr. vs. State of Bihar, reported as (2011) 1 PLJR 780 = 2010
SCC OnLine Pat 1642 while quashing an F.I.R. under section
482 of the Cr.P.C. had observed that an illegal transaction can
not form the basis for attracting the rigors of cheating and
criminal breach of trust. This Court had thus observed as under:-
“8. A bare perusal of the complaint reveals that
even if the allegations are correct the parties
were in pari delicto to commit an offence.
Employment in the Government is available on
advertisement and selection and not purchased
by money. Such appointment is an outright
illegal appointment. If two persons agreed to
commit an act which is an offence under the
Penal Code, 1860 and the agreement fails
because the crime could not be committed can it
be said that it constitutes an offence under the
Penal Code, 1860 when under the Penal Code
the agreement itself was an offence.
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9. Section 23 of the Indian Contract Act declares
void a contract which is contrary to the law or
opposed to public policy. Therefore, even under
the civil law the agreement between the parties
was unlawful in its very inception. Both had
agreed to do something which was prohibited in
law. The contract ex facie being unlawful, both
parties can be said to have intended to exploit
the law for an illegal purpose. The reliance by
the complainant on section 65 of the Indian
Contract Act may create a civil cause of action
as a money claim. This is a mere observation
and not an affirmative finding for the
maintainability of any such claim under an
illegal contract which shall have to be decided
on its own merits in an appropriate civil
proceeding. It can however never constitute a
criminal offence.
10. In Spring Field Financial Services Ltd. v. State
of A.P. AIR 1953 SC 479, a Bench of the
Andhra Pradesh High Court was dealing with
the dishonour of an instrument made in payment
under an illegal contract. It was held in
paragraph 23, 26 and 28 as follows:-
“23. The words “any debt or liability”
would undoubtedly include a cheque
drawn by any person towards a legally
enforceable debt or liability of another
person. The explanation makes it very
clear that the debt or liability towards
which the cheque is issued should be a
legally enforceable debt or liability. This
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would have reference to the nature of the
debt or liability and not to the person
against whom the debt or liability could
be enforced.
26. The purchase of shares of the accused-
company by the complainant-company is
in contravention of the above regulations
and, therefore, they are hit by the
provisions of section 23 of the Indian
Contract Act and, therefore, the entire
transaction is void and the debt is
unenforceable.
28. So, I hold that a party to an illegal
contract cannot invoke the aid of the
Court to have such a contract carried
into effect.”
14. The informant in the present case admittedly
had voluntarily parted with the money for an illegal purpose of
securing a Government licence to open the shops in the railway
station. In the F.I.R. the informant mentioned about the
receiving agreement allegedly signed by the petitioner no.1,
though the said document is heavily disputed by the petitioners.
Any agreement, whether oral or written, which is for an
unlawful object can not fructify into a contract.
15. In this regard section 23 and illustration (f) to
section 23 of the Indian Contract Act, 1872 may be gainfully
referred, which reads as under :-
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and what not.–The consideration or object of
an agreement is lawful, unless –
it is forbidden by law; or
is of such a nature that if permitted, it would
defeat the provisions of any law; or
is fraudulent; or
involves or implies injury to the person or
property of another; or
the Court regards it as immoral, or opposed to
public policy.
In each of these cases, the consideration or
object of an agreement is said to be unlawful.
Every agreement of which the object or
consideration is unlawful is void.
Illustrations
…
(f) A promises to obtain for B an employment in
the public service and B promises to pay 1,000
rupees to A. The agreement is void, as the
consideration for it is unlawful.”
16. In the present case, as noted above, the
alleged transaction is for obtaining the Government license
which is an unlawful act and therefore, the agreement becomes
unlawful and unenforceable. The money parted voluntarily by
the informant on the basis of an agreement which was for
illegally obtaining Government license could not be a lawful
entrustment. Considering the peculiar facts, it appears that both
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the parties are pari delicto. Therefore, now the informant cannot
be permitted to turn around and invoke criminal action against
the petitioners for cheating or criminal breach of trust, as
alleged, since the actions of the informant himself is tainted. So
far as the sections 467 and 468 of the I.P.C. are concerned, from
a bare reading of the F.I.R, it appears that there is not even a
whisper regarding what valuable security, if any, was ever
forged by the petitioners. Again, from the reading of the F.I.R,
none of the ingredients are made out for the offences as alleged
in the F.I.R.
17. Since according to the informant, he
voluntarily parted away the money for an illegal purpose of
securing Government licence for the shops allegedly on the
assurance of the petitioner no.1 and none of the ingredients of
the offences as alleged are made out against the petitioners, it
would be an abuse of the process of law to allow the present
criminal case to continue. Therefore, considering the law laid
down by the Hon’ble Supreme Court in the case of State of
Haryana vs. Bhajan Lal reported as 1992 Supp. (1) SCC 335,
the present F.I.R. registered vide Thakraha P.S. Case No.122 of
2020 for the offences under sections 406, 420, 467, 468, 504
and 506 read with section 34 of the I.P.C and all other
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consequential proceedings arising therefrom are hereby
quashed.
18. Accordingly, the present application is
allowed.
19. However, the informant/opposite party no.2
may file a money suit in the competent Court, if he so desires.
If such a suit is filed then the condonation of delay in filing the
aforesaid suit shall be considered in view of the fact that the
informant/opposite party no.2 has been contesting this
proceeding filed under the criminal law before this Court and
thereafter the suit shall be decided in accordance with law.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R. CAV DATE 27.03.2025 Uploading Date 26.06.2025 Transmission Date 26.06.2025