Patna High Court
Kamlesh Kumar Singh vs The State Of Bihar on 20 December, 2024
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.29472 of 2023
Arising Out of PS. Case No.-353 year-2018 Thana- GANDHIMAIDAN district- Patna
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1. Kamlesh Kumar Singh, son of late Bhagwan Singh, resident of Ganga-5,
Flat No.301, Jalalpur City, Ramjaypal Path, Bailey Road, Danapur, Patna,
Pin - 801503, Bihar
2. Upendra Kumar Sinha, son of late Devendra Kumar Sinha resident of
Sarswati - 2, Flat No.204, Jalalpur City, Ramjaypal Path, Baily Road,
Danapur, Patna, Pin - 801503, Bihar
... ... Petitioners
Versus
1. The State of Bihar
2. Avinash Kumar, son of Sri Rajeshwar Singh, resident of S.K. 70, Housing
Colony, Near Madhuwan Apartment, Hanuman Nagar, Malahi Pakri, P.S. -
Patrakar Nagar, Distt. - Patna, Pin-800020.
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner : Mr. Mrigank Mouli, Sr. Advocate
Mr. Girijish Kumar, Advocate
For the State : Mr. Ram Naresh Ray, APP
For the Opp. Party No.2 : Mr. Vikas Kumar, Advocate
Mr. Sanjiv Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 20-12-2024
Heard learned counsel for the petitioners, learned
APP for the State and learned counsel for the opposite party
no.2.
2. In this case, the petitioners have challenged
the order dated 27.08.2021 passed by the learned Additional
District Judge, IX, Patna, in Criminal Revision No.470 of 2019,
whereby the learned Additional District Judge has set aside the
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order dated 12.07.2019 passed by the learned A.C.J.M.-XVII,
Patna, by which the learned Magistrate has accepted the final
form submitted by the Police. The petitioners have also prayed
for staying the further proceeding proceedings in connection
with Criminal Revision No.470 of 2019.
3. As per the F.I.R. the informant is the
promoter-cum-director of Sea Vihar Fun Fair Private Limited,
Patna (for short "the company"), which is registered with the
Registrar of Companies since 21.09.2016. On 03.03.2017, the
wife of the informant namely, Neelam Kumari, was also
inducted as the Director of the aforesaid company and again on
23.03.2017
, two more Directors namely, Kamlesh Kumar Singh
and Upendra Kumar Sinha (petitioners) were also inducted as
Directors of the said company. It has been alleged that both the
petitioners have forged the signature of his wife i.e. Neelam
Kumari on the bank loan papers and when this fact came to the
knowledge of the informant, he along with his wife requested
the Bank Manager not to allow any withdrawal from the account
of the company but, despite the said request, the petitioners have
colluded with the then Bank Manager of the Bank and withdrew
Rs.5.5 crores fraudulently from the bank account of the
company. It has also been alleged that later on, the informant
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came to know that the petitioners have connived and conspired
with the Registrar of the Companies and removed the informant
and his wife from the directorship of the company. It has further
been alleged that on 09.08.2018 when the informant met the
petitioners in the office of the petitioner no.1, he was threatened
with a pistol and thereafter the informant was assaulted by the
petitioners. During the assault, the petitioners also snatched the
golden chain and golden ring from the informant. Accordingly,
the present F.I.R. has been lodged.
4. After lodging of the present F.I.R., the Police
investigated the case and found no substance in the allegation of
the informant and thereafter, final form was submitted by the
Police on 15.01.2019. The learned Magistrate vide order dated
12.07.2019 accepted the final form submitted by the police.
Against the order of the Magistrate, the informant preferred
Criminal Revision No.470 of 2019 before the learned A.D.J.-IX,
Patna. The learned Additional District Judge vide impugned
order dated 27.08.2021 set aside the order of the learned
Magistrate and directed the learned Magistrate to pass a fresh
order after giving due opportunity of hearing to the informant
and also to pass an order for further investigation on any point
including the point of forging the signature of the informant’s
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wife if it be considered necessary in the interest of justice and
for just decision of the case.
5. In this case, an Interlocutory Application
No.1 of 2023 has been filed by the petitioners challenging the
subsequent orders passed by the learned Magistrate after the
impugned order dated 27.08.2021.
6. Learned Senior Counsel for the petitioners
submits that for smooth functioning of the Water Park, money
was required and therefore, the company approached the State
Bank of India for a term loan. Accordingly, State Bank of India,
Judges Court Road, Antaghat, Patna sanctioned a term loan of
Rs.9.25 crores on 29.01.2018. Thereafter, a meeting of the
Board of Directors of the company was held on 05.02.2018 and
the extract from the proceedings of the meeting of the Board of
Directors was prepared, in which the petitioner no.1 was
authorized to operate the credit facilities and the accounts in the
name of the company maintained with the State Bank of India.
The proceeding of the meeting was signed by the informant and
his wife, who were one of the Directors of the company.
Thereafter on 01.06.2018 the meeting of the Board of Directors
of the Company was convened, in which it was decided to
change the authorized signatory by superseding the earlier
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resolution dated 05.02.2018, which reads as under:-
“RESOLVED THAT Mr. AVINASH KUMAR,
Mr. UPENDRA KUMAR SINHA and Mr.
KAMLESH KUMAR SINGH be and are hereby
authorized to sign/operate credit facilities
opened with State Bank of India and it will be
till disbursement of loan on behalf of SEA
VIHAR FUNFAIR PRIVATE LIMITED in place
of existing authorized signatories Mr.
KAMLESH KUMAR SINGH. The above acts
done and documents shall be binding on the
company, until the same is withdrawn by giving
written notice thereof.”
7. Learned Senior Counsel for the petitioners
also submits that in the first meeting of the Board of Directors
which was held on 05.02.2018, the petitioner no.1 was
authorized as a signatory and subsequently in the meeting dated
01.06.2018, which was held after four months, it was decided to
change the signatories. The wife of the informant had also
participated in both the meetings but, at that time, there was no
whisper of allegation against the petitioners that the forged
signature of the wife of the informant was obtained in the
proceeding dated 05.02.2018 rather, it has been categorically
mentioned in the proceeding of the meeting dated 01.06.2018
that it supersedes exiting resolution dated 05.02.2018.
Moreover, there is no allegation in the proceeding dated
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05.02.2018 that the petitioners have illegally withdrawn money
from the State Bank of India against said sanctioned loan or that
the State Bank of India disbursed the money in the account of
the petitioners.
8. It has been submitted by learned Senior
Counsel for the petitioners that the proceeding dated 05.02.2018
forwarded to the State Bank of India, Judges Court Road,
Antaghat, Patna and thereafter, as per the resolution passed by
the Board of Directors of the Company, the amounts were
disbursed by the State Bank of India on the request of the
authorized signatory i.e. the petitioner no.1 from time to time in
favour of different vendors, who provided materials and
rendered service for the water park. Moreover, despite
resolution dated 05.02.2018 of the Board of Directors of the
company, by which only the petitioner no.1 was authorized as a
signatory, the informant i.e. opposite party no.2 also signed
along with petitioner no.1 on some of the request letters which
were given to the State Bank of India.
9. It has further been submitted that from the
request letter dated 26.03.2018, it appears that the informant
also signed on the request letter in teeth of the resolution dated
05.02.2018 passed by the Board of Directors of the company.
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Thereafter, all the four Directors of the company i.e. Avinash
Kumar (informant), Smt. Neelam (wife of informant) and
petitioners visited the office of the State Bank of India, Judges
Court Road, Antaghat, Patna and signed the Letter of
Arrangement on 15.03.2018 in presence of the officials of the
State Bank of India and the officials of the Bank also endorsed
the signature of all the four Directors of the Company.
10. It is the submission of learned Senior
Counsel for the petitioners that as per the proceeding of the
meeting dated 01.06.2018, all the requests regarding
disbursement of the amount sent by the company to the State
Bank of India shall be made only under the signature of the
three signatories i.e. the petitioners and the informant, which is
apparent from the request letters dated 06.06.2018 and
18.06.2018, which have been issued after the resolution dated
01.06.2018.
11. The next submission of learned Senior
Counsel for the petitioners is that the informant i.e. Opposite
party no.2 sent a letter dated 02.07.2018 to the Manager
(Advance) State Bank of India, Judge Court Road Branch, Anta
Ghat, Patna, requesting to stop the disbursement of sanctioned
loan from the account of the company because of a dispute
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having cropped up among the directors of the company and in
pursuance of the said letter, the State Bank of India sent a letter
dated 24.09.2018 to all the Directors of the company, in which it
was categorically mentioned that no disbursement has been
made after 18.06.2018 because of the letter of the informant
received by the State Bank of India for stopping the
disbursement.
12. It has been argued by learned Senior Counsel
for the petitioners that the last disbursement was made on
18.06.2018 on the request made by all the three Directors
including the informant, which is supported by the bank account
statement of the company but, the informant filed the present
F.I.R. making allegations against the petitioners that they had
forged the signature of the wife of the informant in the bank
loan documents.
13. It has also been submitted that the Chief
Manager, State Bank of India, SME (small and medium
enterprises), Kankarbagh, Patna, vide letter dated 07.08.2021
informed the Directors of the company that the informant and
his wife (One of the Directors of the company) had written
letters dated 21.06.2021 to the Chief Manager, State Bank of
India, SME (small and medium enterprises), Kankarbagh, Patna
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requesting therein to release the personal guarantee extended by
them in captioned unit. In the said letter, they undertook to
withdraw all the charges/allegations made by them against bank
officials and they also clarified that Bank has always acted in an
unbiased manner. Therefore, on perusal of the aforesaid letter
dated 21.06.2021, it appears that the allegations leveled in the
F.I.R. against the bank officials and the petitioners regarding
their connivance are misconceived and frivolous allegations.
14. The next argument of learned Senior Counsel
for the petitioners is that the informant has lodged the present
F.I.R. alleging that the signature of his wife, who is one of the
Directors of the company, is forged in the proceeding dated
05.02.2018 but his wife who is aggrieved party never lodged
such complaint before the Police Officials. The informant, who
is one of the signatories to the proceeding dated 05.02.2018
along with the petitioners, had not raised any doubt or any
allegation regarding his signature, but raised question on the
signature of his wife. Moreover, the informant, who had
approved the proceeding dated 05.02.2018 and later on, during
the subsequent meeting dated 01.06.2018 had considered the
earlier proceeding dated 05.02.2018 in totality but, at that time,
the informant did not raise any allegation regarding such forged
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signature of his wife but had raised the question of veracity of
his wife’s signature after about six months. During this
intervening period, there was no allegation either by the
informant or his wife regarding forged signature. Therefore, it
appears that the present F.I.R. has been lodged by the informant
deliberately as an after thought.
15. It has also been argued that so far as the
allegation of the informant that the petitioners in connivance
with the Registrar of the Company had removed the informant
and his wife from the directorship of the company is concerned,
the same is factually incorrect as the informant and his wife
were the Directors of the Company on the date when the said
F.I.R. was lodged against the petitioners. It is a fact that on
31.07.2018 the company filed DIR-12 before the Registrar of
the Company, Bihar for removal of the informant and his wife
from the directorship of the company, which was acknowledged
by the Registrar of the Company, Bihar through e-mail dated
01.08.2018 and finally the Registrar of the Company approved
DIR-12 confirmation and in this regard the company had
received an e-mail dated 15.07.2019, meaning thereby, the
informant and his wife were Directors prior to 15.07.2019.
Therefore, the allegations of the informant that he and his wife
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(both directors) were removed on the date of the filing of the
F.I.R. was incorrect, misconceived and far from the fact.
16. It has further been argued that the informant
alleged in the said F.I.R. that petitioners abused him in the office
of petitioner no.1 and that the petitioner no.1 attacked on the
informant with a pistol with an intention to kill him but, the said
accusation is factually incorrect because on 09.08.2018 the
petitioner no.1 was not in Patna rather, he was present in Rajya
Sabha premises, which is apparent from the pass issued on
09.08.2018 in favour of petitioner no.1 at 1.04 P.M. by the Rajya
Sabha Secretariat.
17. The submission of learned Senior Counsel
for the petitioners is that the learned Magistrate issued summon
on 16.01.2019 to the informant on the address given in the
fardbeyan and also on the address mentioned on the first page of
the F.I.R. and the report of the office was placed before the
Court on 11.02.2019, in which it was mentioned that the father
of the informant refused to accept the summon. Thereafter,
again the case was take up on 18.02.2019 for appearance of the
informant but, he did not appear. Therefore, again a fresh notice
was issued by the Court on 03.06.2019 and the report was
submitted by the office before the Court on 25.06.2019, in
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which it was mentioned that the notices have been served. Since
the informant chose not to appear before the Court, the Court
came to the finding that the informant has nothing to say on the
final form submitted by the police and accordingly, accepted the
final form. However, the said order was challenged before the
learned Additional District Judge. Thereafter, the impugned
order dated 27.08.2021 was passed.
18. It is the submission of learned Senior
Counsel for the petitioners that the impugned order dated
27.08.2021 is bad in law as well as in fact as the learned
Additional District Judge has not appreciated the materials
available on record while passing the impugned order. The
learned Additional District Judge has also not considered the
fact that the informant himself signed on the proceeding dated
05.02.2018 along with his wife, who is also one of the Directors
of the company.
19. Learned Senior Counsel for the petitioner
points out that the learned Additional District Judge while
passing the impugned order ought to have considered the fact
that the petitioner no.1 was not present in Patna on 09.08.2018
when the alleged act was committed by the petitioners. The
learned Additional District Judge has failed to consider that the
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notices sent by the learned Magistrate and summon issued to the
informant on the address given in the fardbeyan and also
address mentioned on the first page of the F.I.R. which were
validly served to the informant but the informant had chosen not
to appear before the Court and therefore, the learned Magistrate
had given full opportunity to the informant to place his case
before the Court.
20. The last submission of learned Senior
Counsel for the petitioners is that the learned Additional District
Judge has exceeded his jurisdiction in directing for further
investigation and specifically about the forged signature of
Neelam Kumari, meaning thereby, the learned Additional
District Judge has directed to investigate the matter in a specific
manner, which is impermissible in law. Therefore, the impugned
order dated 27.08.2021 is illegal and in violation of settled law.
21. Learned Senior Counsel for the petitioners
has relied upon the decision of the Hon’ble Supreme Court
rendered in the case of M.C. Abraham & Anr. vs. State of
Maharashtra & Ors. reported as 2003 (2) SCC 649 wherein it
has been held that it is the statutory obligation and duty of the
police to investigate into the crime and the Courts normally
ought not to interfere and guide the investigating agency as to in
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what manner the investigation has to proceed.
22. He also relied upon the decision of the that
Hon’ble Supreme Court in the case of D.
Venkatasubramaniamachar Vs M.K.Mohan Krishnamachari
and Another, reported in 2009 (10) SCC 488, wherein it has
been held as under :-
“In our view the High Court exceeded its
jurisdiction in making this direction which
deserves to be set aside. While it is open to the
High Court, in appropriate cases, to give
directions for prompt investigation etc. the High
Court cannot direct the investigating agency to
submit a report that is in accord with its views
as that would amount to unwarranted
interference with the investigation of the case by
inhibiting the exercise of statutory power by the
investigating agency.”
23. Learned Senior Counsel for the petitioners
has also relied upon the decision rendered in the case of Indian
Oil Corporation Vs. NEPC India Ltd. & Others (2006) 6 SCC
736, wherein it has been held as under :-
“While on this issue, it is necessary to take
notice of a growing tendency in business circles
to convert purely civil disputes into criminal
cases. This is obviously on account of a
prevalent impression that civil law remedies are
time consuming and do not adequately protect
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tendency is seen in several family disputes also,
leading to irretrievable break down of
marriages/families. There is also an impression
that if a person could somehow be entangled in
a criminal prosecution, there is a likelihood of
imminent settlement. Any effort to settle civil
disputes and claims, which do not involve any
criminal offence, by applying pressure though
criminal prosecution should be deprecated and
discouraged…”.
24. Learned Senior Counsel for the petitioners
has also relied upon the decision of the Hon’ble Supreme Court
rendered in the case of State of Haryana and Others vs. Bhajan
Lal and Others reported as 1992 Suppl. (1) SCC 335 wherein
the Hon’ble Supreme Court has laid down the guidelines under
which an F.I.R./complaint can be quashed and the present case
is squarely covered under the said guidelines as even if the
entire allegations made in the F.I.R. is taken to be true, still no
offence under Sections 406,409,198,504 and 120B of Indian
Penal Code is made out against the petitioners. Further, it is
settled principle of criminal jurisprudence that if the contents of
the FIR do not disclose the commission of any offence, the
machinery of law and process of the Court should not be
allowed to be abused. Neither the investigating agency nor the
criminal courts are the forums for wrecking vengeance of one
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against the others.
25. By making the aforesaid submissions,
learned Senior Counsel for the petitioners submits that from the
above facts, it is stated that the present F.I.R. is based on
incorrect facts and it is a deliberate attempt on the part of the
informant to harass the petitioners by involving them in
frivolous litigation, which is nothing but an abuse of the process
of the law. The present criminal proceeding is initiated with an
ulterior motive and continuation of the same amounts to an
abuse of the process of the law. Therefore, the impugned order
dated 27.08.2021 passed by the learned Additional District
Judge is bad in law and is liable to be set aside.
26. Learned counsel for the informant (opposite
party no.2) has submitted that the police has submitted the final
form without investigating the main allegation regarding the
withdrawal of huge amount of money in connivance with the
Bank officials by forging the signature of informant’s wife and
removing the informant and his wife from the directorship of the
company in connivance with the Registrar of the Company.
27. Learned counsel for the opposite party no.2
has also submitted that the learned Additional District Judge has
rightly taken note of the fact that the informant at the very
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beginning of the complaint dated 09.08.2018, which is the basis
of institution of the present F.I.R., has given his present address
as S.K. 70, Housing Colony, Near Madhuwan Apartment,
Hanuman Nagar, Malahi Pakri, P.S.-Patrakar Nagar, District-
Patna but, instead of sending the notices at his present address,
the notices were sent at the permanent address of the informant
at village- Chainpur, P.S.- Gopalpur, District- Patna, where the
informant does not reside and on account of this, the notices
could not have been served upon the informant. It is emphasised
by learned counsel for the opposite party no.2 that the present
address of the informant was clearly mentioned in the aforesaid
complaint dated 09.08.2018. Therefore, it can be said that both
the notices issued by the Court were not duly served upon the
informant and on account of which, he did not have any
opportunity to present his case before the learned Magistrate at
the time of hearing of acceptance of final form.
28. It has been submitted by learned counsel for
the opposite party no.2 that in course of argument it has been
contended on behalf of the petitioners that the revision
application has been filed under Section 397 of Code of
Criminal Procedure and therefore, the learned Additional
District Judge should have either allowed or dismissed the
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Criminal Revision without issuance of any direction regarding
investigation of this case, but the learned Additional District
Judge has issued direction to investigate the case in a particular
manner, which is impermissible. In this regard, learned counsel
for the opposite party no.2 has drawn the attention of this Court
to the operative part of the impugned order, which reads as
under:-
“Hence, considering all the facts and
circumstances of the case and above made
discussions, it is clear that the learned A.C.J.M.-
XVII has committed an illegality in passing the
impugned order dated 12.07.2019. Hence, the
order dated 12.07.2019 is set aside and the
learned A.C.J.M. is directed to pass a fresh
order after giving due opportunity of hearing to
the informant, and also to pass an order for
further investigation on any point including the
point of forging of the signature of informant’s
wife if it be considered necessary in the interest
of justice and for just decision of the case. Let
the copy of this order be sent to the learned
court below along with the L.C.R.” (emphasis
supplied)
29. It has been submitted that from a plain reading
of the operative part of the impugned order, it is clear that the
learned Additional District Judge has left open to the discretion
of the learned Magistrate to pass an order for further
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investigation on any point including scientific investigation of
alleged forging of the signature of the wife of the informant.
Therefore, the same can not be treated as a direction to
investigate the case in a particular manner.
30. The learned counsel for the opposite party
no.2 has further submitted that there is ample power to the
Revisional Court under Code of Criminal Procedure to issue
positive direction for inquiry. Section 397 of the Code of
Criminal Procedure should not be read in isolation but it should
always be read with the provisions of Sections 398 to 401 of the
Code of Criminal Procedure wherein the power to inquire and
power of Sessions Judge under revision have been dealt with in
detail. Sections 398 to 401 of Code of Criminal Procedure, read
as under :-
“398. Power to order inquiry :- On examining
any record under section 397 or otherwise, the
High Court or the Sessions Judge may direct the
Chief Judicial Magistrate by himself or by any
of the Magistrates subordinate to him to make,
and the Chief Judicial Magistrate may himself
make or direct any subordinate Magistrate to
make, further inquiry into any complaint which
has been dismissed under section 203 of Sub-
Section (4) of section 204 or into the case of any
person accused of an offence who has been
discharged:
Patna High Court CR. MISC. No.29472 of 2023 dt.20-12-2024
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direction under this section for inquiry into the
case of any person who has been discharged
unless such person has had an opportunity of
showing cause why such direction should not be
made.
399. Sessions Judge’s powers of revision :- (1)
In the case of any proceeding the record of
which has been called for by himself the
Sessions Judge may exercise all or any of the
powers which may be exercised by the High
Court under Sub-Section (1) of section 401.
(2) Where any proceeding by way of revision is
commenced before a Sessions Judge under Sub-
Section (1), the provisions of Sub-Sections (2),
(3), (4) and (5) of section 401 shall, so far as
may be, apply to such proceeding and references
in the said subsections to the High Court shall
be construed as references to the Sessions
Judge.
(3) Where any application for revision is made
by or on behalf of any person before the
Sessions Judge, the decision of the Sessions
Judge thereon in relation to such person shall be
final and no further proceeding by way of
revision at the instance of such person shall be
entertained by the High Court or any other
Court.
400. Power of Additional Sessions Judge :- An
Additional Sessions Judge shall have and may
exercise all the powers of a Sessions Judge
under this Chapter in respect of any case which
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may be transferred to him by or under any
general or special order of the Sessions Judge.
401. High Court’s powers of revision :- (1) In
the case of any proceeding the record of which
has been called for by itself or which otherwise
comes to its knowledge, the High Court may, in
its discretion, exercise any of the powers
conferred on a Court of Appeal by sections 386,
389, 390 and 391 or on a Court of Session by
section 307 and, when the Judges composing the
Court of revision are equally divided in opinion,
the case shall be disposed of in the manner
provided by section 392.
(2) No order under this section shall be made to
the prejudice of the accused or other person
unless he has had an opportunity of being heard
either personally or by pleader in his own
defence.
(3) Nothing in this section shall be deemed to
authorize a High Court to convert a finding of
acquittal into one of conviction.
(4) Where under this Code an appeal lies and no
appeal is brought, no proceeding by way of
revision shall be entertained at the instance of
the party who could have appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the
High Court by any person and the High Court is
satisfied that such application was made under
the erroneous belief that no appeal lies thereto
and that it is necessary in the interests of justice
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so to do, the High Court may treat the
application for revision as a petition of appeal
and deal with the same accordingly.”
31. It is the submission of learned counsel for the
opposite party no.2 that under the revisionary jurisdiction, the
Additional Sessions Judge has same power which the High
Court possesses under section 401 of the Cr.P.C. Therefore,
from the reading of the aforesaid provisions, it is clear that the
Revisional Court either High Court or Court of Session
including the Additional Session Judge while hearing the
revision application is well within his power to pass any
consequential or incidental order that may be just or proper. Not
only that, it may also take additional evidence, if necessary, by
itself or direct it to be taken by the Magistrate. There is no
embargo on the power of the Additional Sessions Judge to give
any direction to the Magistrate while deciding any criminal
revision application and therefore, there is no infirmity in the
impugned order dated 27.08.2021 passed by the learned
Additional District Judge.
32. The learned counsel for the opposite party
no.2 has further argued that the contention of the petitioners that
the dispute is civil in nature as there is a fight between the
parties regarding the ownership of the company and the matter
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is pending before the appropriate forum, in this regard, it is
submitted that the the petitioners are attempting to convert their
criminal offence into the civil case and therefore, evaded the
criminal liability, so the stand of the petitioners that dispute is
civil in nature has no legs to stand.
33. In support of this submission, he has placed
reliance on a decision of the Hon’ble Supreme Court in the case
Amit Kapoor vs. Ramesh Chander reported in (2012) 9 SCC
460 wherein in para 27.1 it has been held as under :-
“27.1. Though there are no limits of the powers
of the Court under Section 482 of the Code but
more the power, the more due care and caution
is to be exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms of
Section 228 of the Code should be exercised
very sparingly and with circumspection and
rarest of rare cases.” that too in the rarest of
rare cases.”
34. It has also been argued that the present case
is at nascent stage as the matter is pending for investigation and
if the impugned order of the leaned Additional District Judge is
set aside that would tantamount to nipping the entire matter in
bud. The opposite party no.2 has submitted that the police
officials are in collusion with these petitioners, which will be
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evident from the order dated 03.12.2021 passed by learned
Magistrate, by which the Investigating Officer was directed to
submit his report after conducting further investigation within
four weeks and the copy of the said order was also sent to the
concerned S.H.O. but to no avail. On 04.01.2022 a strong
reminder was also sent by the learned Magistrate to the
concerned Investigating Officer to submit his report in light of
order dated 03.12.2021. Even after lapse of almost seven months
nothing was done by the concerned Investigating Officer and the
S.H.O. On 22.08.2022, the matter was transferred to the Court
of learned S.D.J.M., Patna and on 26.10.2022, a show cause
notice was issued by the learned S.D.J.M. to the Investigating
Officer and the S.H.O. of the concerned Police Station, but even
thereafter, nothing was done neither any reply to the show cause
was filed nor any investigation report was submitted. On
05.09.2022 the learned S.D.J.M., Patna issued direction for
physical appearance of the concerned Police Officers on
14.09.2022, but neither the Investigating Officer of the case nor
the S.H.O. concerned were present nor they sent any report.
Hence, on 23.09.2022 a last chance was given to the
Investigating Officer and the S.H.O. concerned to comply the
order dated 03.12.2021 and explain the delay caused by them in
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compliance of the order, failing which, the Court would be
bound to recommend to take necessary action against them.
Therefore, the aforesaid facts speaks volumes regarding the
casual approach of the Police who are in connivance with the
petitioners and other accused persons.
35. It is submitted by learned counsel for the
opposite party no.2 that this Court vide order dated 01.05.2023
stayed the further proceeding of the case pending in the court
below and therefore, the opposite party no.2 has filed
Interlocutory Application No.2 of 2024 for vacating interim
order dated 01.05.2023 passed by this Court.
36. Lastly, it has been submitted by learned
counsel for the opposite party no.2 that not only the petitioners
are involved in this case but also, the the bank officials have
colluded with the petitioners as without their collision such
offence could not have been committed. In view of the aforesaid
facts, there is no merit in the present case filed under Section
482 of Cr.P.C. as there is no infirmity in the impugned order.
37. I have considered the submissions of the
parties and perused the materials on record including the
impugned order.
38. In the present case, it is an admitted fact that
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after the submission of the final form, the notices were sent at
the village (permanent) address of the informant and not at the
present and current address of the informant, thereby he was
unable to present himself before the learned Magistrate.
Therefore, the order of the learned Magistrate dated 12.07.2019,
by which the final form was accepted is fit to be set aside and
the learned Additional District Judge has rightly set aside the
said order and remanded the matter back to the learned
Magistrate for passing a fresh order after giving due opportunity
to the informant.
39. The argument of learned counsel for the
petitioners that a civil dispute is being given the colour of
criminal case is also not appealing to this Court as at the stage of
quashing this Court can only go into the allegations and if from
the allegations made in the F.I.R., the offences are made out then
this Court will not quash the F.I.R. and the entire proceedings
under the quashing jurisdiction under section 482 of the Cr.P.C.
The law in this regard is well settled by the Hon’ble Supreme
Court in the case of State of Haryana and Ors. vs. Bhajan Lal
and Ors. (supra) wherein the Hon’ble Supreme Court has
delineated the circumstances where an F.I.R. or the charge-sheet
can be quashed and in my view, the allegations made in the
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F.I.R. do not fall in any of the categories mentioned in the case
of State of Haryana and Ors. vs. Bhajan Lal and Ors. (supra).
40. The argument of learned counsel for the
petitioners that while allowing the revision application, the
learned Additional District Judge should not have given
necessary directions does not find favour in view of the
provisions of Sections 398 to 401 of the Cr.P.C. The learned
Additional District Judge may issue an incidental order, which is
just and proper for deciding the revision application. Therefore,
I am of the view that the learned Additional District Judge while
hearing the revision application has the power to pass any
consequential or incidental order that may be just and proper.
Moreover, while passing the impugned order, the learned
Additional District Judge has left it on the discretion of the
learned Magistrate to pass an order for further investigation on
any point including the point of forging of the signature if the
learned Magistrate deems it necessary in the interest of justice.
41. In view of the aforesaid discussions, I do not
find any error in the impugned order of the learned Additional
District Judge. Accordingly, this application is dismissed. The
impugned order of the learned Additional District Judge is
affirmed.
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42. The interim order dated 01.05.2023 passed
by this Court is hereby vacated. The learned Magistrate is
directed to proceed with the matter as per the revisional order
dated 27.08.2021 passed by the learned Additional District
Judge.
43. Pending Interlocutory Application(s), if any,
stands disposed of.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R. CAV DATE N/A. Uploading Date 21.12.2024 Transmission Date 21.12.2024