Satya Narayan Agarwal vs State Of Jharkhand And Others

Sanjay Kumar Dwivedi, J

Opposite party no.2 has appeared through their counsel.

The matter was taken up on 19.06.2023 and on that day, learned counsel for opposite party no.2 was not present and that is why, the matter was adjourned with a view to provide one more opportunity to opposite party no.2 and it was also observed that if opposite party no.2 will not appear on the next date, this petition shall be decided on merit in his absence.

Identical is the situation today. On repeated calls, nobody has responded on behalf of the opposite party no.2 and in that view of the matter, this petition is being heard on merit.

Heard Mr. Deepak Kumar Sinha, learned counsel for the petitioner and Mr. Bishwambhar Shastri, learned counsel for the State.

This petition has been filed for quashing of the entire criminal proceeding including the order dated 26.08.2013 in connection with Protest cum Complaint Case No. C1-844/2013, pending in the court of the learned Judicial Magistrate, Jamshedpur.

Initially Complaint Case No. 1449/2012 was lodged by Sita Ram Agarwal against the petitioner which was sent to police station under Section 156(3) Cr.P.C for lodging of the F.I.R and thereafter Sidgora P.S. Case. No. 71/2012 was lodged. Subsequently, the Police has investigated the said case and filed charge-cheet in this case and it reveals that the case is of civil nature not of criminal nature. After that the complainant filed protest cum complainant petition being Protest cum Complaint Petition No. C1-844/2013 and the learned court has taken cognizance against the petitioner. In the complaint cum protest petition, it was stated that the father of the complainant died in 1986 and her mother died in 2006. After the death of the father of the complainant, he looked after the entire family and from the Stridhan of his wife, he purchased a property. It was further stated that the complainant's wife namely Shanti Devi started her own business and established a registered firm on 22.04.1993 in the name and title "Sri Ram Industries". It was further stated that the wife of the complainant has never inquired into the accounts of the firm from the petitioner and subsequently informant's wife came to know that the petitioner who is doing the business showing himself the proprietor of the firm and hence on 10.05.2012, the informant's wife demanded all details regarding the business from the petitioner and asked him to give account of last three years, but the petitioner did not give the accounts and misbehaved with the wife of the complainant. It was alleged that since 1995 the petitioner is controlling the business and after giving share of complainant's wife, the petitioner used Rs.25,00,000/- for himself. It was also alleged that the petitioner is not giving the share of the wife of the complainant and on aforesaid basis complainant recorded solemn affirmation thereafter on 26.08.2013, the learned court has taken cognizance against the petitioner under Section 420/406 of the I.P.C.

Mr. Deepak Kumar Sinha, learned counsel for the petitioner submits that earlier Complaint Case No.1449/2012 was filed by opposite party no.2 and the same was sent to the Police under Section 156(3) of the Cr.P.C. for registration of the FIR and investigation and subsequently, the police has submitted final form, whereby, the petitioner has not been sent up for trial. He further submits that on the protest petition, the learned court has taken cognizance without disclosing material for taking cognizance against the petitioner. He also submits that the petitioner and opposite party no.2 are own brothers and the case is arising out of business firm and the said firm was come to an end on 08.03.1999. He further submits that even if the case is made out i.e. is civil in nature and no criminality is there and in that view of the matter, the entire criminal proceedings may kindly be quashed.

On the other hand, Mr. Bishwambhar Shastri, learned counsel for the State submits that the charge-sheet has been submitted, however the learned court has taken cognizance on the protest petition.

In view of the above submissions of the leaned counsel for the parties, the Court has gone through the materials on the record including the contents of the protest cum complaint petition as well as the order taking cognizance. It is an admitted fact that earlier complaint case was filed by opposite party no.2, which was sent by the learned court under Section 156(3) of the Cr.P.C. for registration of the FIR and investigation. The final form was submitted whereby, the petitioner has not been sent up for trial. The petitioner and opposite party no.2 are own brothers and the matter is arising out of business firm, which has come to an end on 08.03.1999 and in that view of the matter, it appears that for civil wrong, if any, criminal case has been filed. There is no doubt that if the criminality is made out, both civil and criminal cases can go simultaneously, however if the criminality is not made out, criminal case is abuse of process of law. Further looking to the order taking cognizance, it transpires that the prima facie material has not been disclosed therein. At least, prima facie materials against the petitioner is required to be disclosed in the order taking cognizance, which is lacking in the case in hand.

In view of the above facts, reasons and analysis, the entire criminal proceeding including the order dated 26.08.2013 in connection with Protest cum Complaint Case No. C1-844/2013, pending in the court of the learned Judicial Magistrate, Jamshedpur is quashed.

Accordingly, this petition is allowed and disposed of.

Interim order, if any granted by this Court, stands vacated.