Gauri Shankar Pandey vs The State of Bihar and Another

Abhijit Sinha, J.—The petitioner, one of the F.I.R. named accused of Harnaut P.S. Case No. 60 of 2005, has prayed for the quashing of the order dated 22.1.2007 passed therein by the learned Chief Judicial Magistrate, Nalanda at Biharsharif, whereby he has taken cognizance against the petitioner for offences under Sections 406, 420/34 I.P.C. One Rai Ballabh Yadav, impleaded herein as O.P. No. 2, filed a complaint petition, being 1106(C) of 2004 inter alia alleging that he was residing in the house of his fufa at Harnaut where on 10.8.1999 all the four named accused approached him and narrated their need for Rs. 1,65,000/-for starting a medicine shop and business in cement and rods and in good faith he handed over Rs. 50,000/- to the petitioner herein in the presence of the witnesses and the other accused and by way of security they handed a Fixed Deposit Receipt No. 28/333 of the Central Bank of India, Harnaut Branch, and assured to return after 2-4 days to collect the balance amount. It is alleged that on 14.6.2000 all the accused persons came again to collect the remaining amount of Rs. 1,15,000/- and in all they took Rs. 1,65,000/-. It is said that on 20.12.2000 they came again and demanded the Fixed Deposit Receipt with an assurance that they would return the amount after encashing the Fixed Deposit Receipt which had matured by then. The complainant in good faith returned the document to the petitioner herein. When the money was not returned the complainant contacted the father of the petitioner who assured that the money would be returned very soon. Eventually on 30.10.2004 they refused to return the money and also abused the complainant.

The said complaint on being transmitted to the concerned P.S. u/s 156(3) Cr.P.C. Harnaut P.S. Case No. 60 of 2005 came to be registered.

The submission on behalf of the petitioner is that he is innocent and has been falsely implicated. It was contended that the falsity of the case would be obvious from the glaring fact that the complainant had cunningly not disclosed the nature and reason of his proximity with the accused, whether it was by reason of relationship or close acquaintance, so as to oblige them with the loan of such huge amount and that too without any receipt or some document in that regard. Similarly, he has not divulged how he was possessed of such huge sum of money, moreso, when he was living in the house of his fufa. Another point which was sought to be agitated was that whereas the accused persons took away the bank receipt on 20.12.2008 as the Fixed Deposit had matured but no reason has been assigned for lodging the case after four years in 2004. Political rivalry and litigation have also been cited for false implication.

Although the learned counsel for O.P. No. 2 attempted to justify the impugned order and plead that the offences of criminal breach of trust and cheating had clearly been made out from the recital in the complaint petition, he was unable to show that the ingredients of those offences had been made out.

Even otherwise, the prosecution story appears to be improbable. It does not stand to reason that any person would be so benevolent as to lend such huge sums merely on trust and without having any paper prepared. The amount of Fixed Deposit has also not been disclosed to indicate whether the amount was sufficient to cover the amount purportedly loaned out. Even the delay in lodging the case has not been explained. These matters only go to show the improbability of the complainant''s case. Prosecution of the petitioner, even as the investigation remains pending against the other accused, would amount to an abuse of the process of the court. Accordingly, the impugned order so far as the petitioner is concerned is quashed and the application is allowed.