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2012 Supreme(Pat) 1162
ANJANA PRAKASH, J.
(5.9.2012)
Cri. Misc. No. 46515 of 2009
Mumtaz Alam : Petitioners
Vs.
The State of Bihar & Anr. : Opp. Parties
For the Petitioners: M/s Amit Shrivastava, Girish Pandey.
For the Opp. Parties : M/s S.D. Sanjay, Gopal Prasad Gupta.
Headnote:Code of Criminal Procedure, 1973–Section 482 read with Indian Penal Code, 1860–Section 406–Quashing of the order taking cognizance under Section 406 IPC–The requirements to satisfy prosecution u/s 406 IPC are 'entrustment' of a property and its 'dishonest misappropriation' or 'Conversion'–In the present complaint the allegation is that the complainant entrusted the amount in question to BICICO which retained it for a period of eight months causing loss of interest–There is no allegation that the petitioner was entrusted with the amount or that he converted it to his own use–The bald allegation that "the accused persons with dishonest intention and by practising fraud after committing forgery for the purpose of cheating made false representation on the strength of the forged document and obtained Rs. 27.00 lac from the complainant and retained it for 8 months and thereby, caused wrongful loss of 3.5 on account of interest besides other losses, and as such, they are liable to be tried & punished for the said offence", is not tenable–Cognizance quashed. (Paras 11 & 12)
Code of Criminal Procedure, 1973–Sections 2(d), 190(1)(a) and 250–Complaint making false accusations–Burden is cast upon the complainant at the initial stage to certify that the complaint is a full disclosure of facts and he binds himself to deterrent action in case it is not–The onus is not confined to revealing what he maintains is true, but also to placing before the court all facts germane to the issue, which the court is entitled to know at the first instance–Truth than prevails our individual interest and a certain amount of immunity is created, both, for the Accused and the System–Presently, even though statements are recorded on oath in court where witnesses loosely say that what they will state is true, but there is no voluntary submission to a likely penal action in case of default, which is essential in present times. (Para 24)
AIR 1992 SC 604; AIR 2006 SC 2780; (1997)10 SCC 358 para 5–Referred to.
The petitioner seeks quashing of the entire proceeding including the order dated 15.01.2007 passed in Complaint Case No.1975-C of 2006 by Ms. Saroj Kumari, Judicial Magistrate, 1st class, Patna, by which she has taken cognizance under section 406 Indian Penal Code.
2. After the Counsels for respective parties were heard at length, the Court felt the necessity of perusing the documents that had been mentioned in the Petitioner?s application and required him to file the same. Hence by way of a Supplementary Affidavit, the communication between the BICICO and the Petitioner were brought on record. None of them are disputed by the Opposite Party No.2.
3. Before I advert to the contents of the Complaint, I wish to record the documented details of the transaction that took place between the parties.
On 14.05.2005, the Opposite Party No.2 in response to a tender for purchase of assets of M/s Barway Granite & Stone Co. Pvt. Ltd., Pandra, Ratu Road, Ranchi, wrote to the Managing Director, Bihar State Credit & Investment Corporation Limited, the following:–
“I have seen your advertisement for sale of assets of different sick-closed units of Bihar & Jharkhand area. In this connection, I had a discussion with your Mr. M. Alam and I express my interest to purchase the assets of M/s Barway Granite & Stone Co. Pvt. Ltd., Ranchi, name of which has been changed to
M/s Ranchi Granite & Stone Co. Pvt. Ltd.
I hereby offer to pay Rs.51,00,000/- (Fifty one Lakhs) only for the entire assets of the company including free hold land, building, plant & machinery etc.”
You will hand over the possession of all assets on payment of first 25% so that we can start re-organizing the unit for fresh commencement. You will extend all co-operation and protection for retaining peaceful possession of the assets. Mutation of land ownership in my proposed company?s name shall be your responsibility.”
The BICICO by letter dated 14.06.05 informed the Complainant that it had tentatively accepted his offer and advised him for payment of 100% amount by 30.06.2005, failing which his offer would stand rejected and the earnest money deposited by him would be forfeited without further reference and the Corporation would be at liberty to re-advertise/renegotiate with other tenderers and or do as it deems fit and proper.
On 28.06.2005, the Opposite Party No.2 informed the In charge Legal Cum OTS, Bihar State Credit & Investment Corporation Ltd., acknowledging the letter dated 14.06.2005 and gave his acceptance. However, on 04.07.2005, Sri O. P. Singh, I/c OTS cum Legal of BICICO informed him that he had failed to deposit the money as intimated to him and also that he had received the copy of MOU personally.
On 21.07.2005,once again Sri O P Singh, A.M. (OTS), BICICO, informed him that Board of Directors of BICICO have approved the sale on the following condition:–
“As the purchaser has deposited only 50% of the consideration amount, the assets can be handed over on furnishing bank guarantee for the balance 50% of the consideration money.”
“This is to inform you that since you have already paid Rs.27.00lacs out of the consideration money of Rs.53.12lacs as such you are advised to give Bank Guarantee for the balance amount so that further steps could be taken in this regard. Kindly expedite giving of the Bank Guarantee at the earliest.”
In the next communication dated 31.10.2005 the Opposite Party No.2 raised his apprehensions in the following manner:–
“We are extremely shocked to know from the Sub-Registrar Office at Ranchi that there was no registration of sale deed of 90 decimals freehold land at Pandara, Ratu Road, Ranchi, either in favour of Mr. Ananat Kumar, Managing Director of the above Company or in favour of the Company.
Further, it was very surprising to know from Circle Officer, Ranchi, that there was no mutation of the aforesaid free hold land of 90 decimals at Pandara, Ratu Road, Ranchi, either in favor of the Mr. Anant Kumar or the above Company.
Further in the context the afo
