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2017 Supreme(Pat) 1462
IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY PRIYA, J.
Dr. Poonam Sinha @ Poonam Singh, wife of Rajeev Sinha - Petitioner
Versus
The State of Bihar and Others - Opposite Party
Criminal Miscellaneous No.32227 of 2013
Decided on : 17-02-2017
Advocate Appeared:
For the Petitioner:Mr. Manindra Kishore, Advocate
For the Opposite Party :Mr. Suresh Pd. Singh No.1, Advocate Ms. Kumari Rashmi, Advocate
Headnote:
Negotiable Instruments Act, 1881 – Section 138 – Indian Penal Code, 1860 – Section 420 – Criminal Procedure Code, 1973 – Sections 245 and 482 – Dishonour of cheque – Rejection of petition seeking discharge from case – As per allegation made in Complaint Petition and statement of witnesses recorded before charge, there is nothing on record to show that petitioner had dishonest intention at the time of taking loan by her husband – Similarly, there are no allegations as to cheating or dishonest intention of petitioner in retaining money in order to have wrongful gain to her or causing wrongful loss to complainant – Except bald allegation that husband of petitioner after receiving amount from complainant gave the same to her and she kept the same in her bag, there is no other allegation against petitioner either in complaint petition or in statement of witnesses recorded before charge – There is simply vague allegation against petitioner that she took out cheque from bag and gave the same to her husband – Very ingredients of Section 420 of IPC and Section 138 of Negotiable Instrument Act are not attracted against petitioner on the basis of allegation made in complaint petition and evidence of witnesses recorded during enquiry under Section 202 Cr.P.C. as well as before charge – Continuance of criminal proceeding against petitioner will be abuse of process of law – Entire criminal proceeding against petitioner quashed. (Paras 13 to 17)
1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 06.06.2013 passed by the 6th Additional Sessions Judge, Muzaffarpur, in Criminal Revision No.19 of 2012, as well as the order dated 21.01.2012 passed by the Chief Judicial Magistrate, Muzaffarpur, in Complaint Case No.C-2312 of 2008/Tr. No.657 of 2012 whereby the revision filed by the petitioner against the said order of the Chief Judicial Magistrate, Muzaffarpur, under Section 245 Cr. P. C. was dismissed and it is held that there is no infirmity in the order of the Chief Judicial Magistrate, Muzaffarpur, by which discharge petition filed by the petitioner has been rejected.
2. The prosecution case as per the complaint, in brief, is that complainant had family relationship with the accused persons. The accused persons (petitioner and her husband) had taken loan for solemnizing marriage of their daughter in the year 2006 from different persons on interest. The accused persons were unable to make payment of the interest amount and the principal amount remained the same. In the month of February, 2008, the accused persons came to the complainant and requested for loan of rupees seven lacs on the promise that they will return the same in 3-4 months. It is alleged in the Complaint Petition that the petitioner is a Lecturer in Bihar University and she is likely to get rupees four lacs as arrear of her salary and the rest amount would be arranged from other sources. The complainant gave rupees seven lacs on such assurance to the accused persons at her residence after withdrawing from LIC. The accused persons gave one cheque bearing no.AS/98- 294915 dated 10.03.2008 of UCO Bank, Club Road, Muzaffarpur, of rupees seven lacs as guarantee. It is further alleged that rupees seven lacs was received by the husband of the petitioner, who handed over the money to the petitioner. The petitioner kept the money in her bag and handed over the cheque, which was signed by her husband, to the complainant. The accused persons did not return the money after three months. Thereafter, the complainant presented the cheque for its payment with consent of this petitioner and her husband in the first week of August, 2008, but the same was dishonoured by the bank. The complainant sent legal notice to the accused persons but they did not return the money and thereafter the case was filed. The complainant has alleged that the petitioner and her husband had made the habit of cheating persons in such a manner. Two other cases have also been filed against them; one by Sri Braj Kishore son of Sri Prabhu Narayan Thakur vide Complaint Case No.448 of 2008 and another by Mahesh Das son of late Rambriksh Das vide Complaint Case No.791 of 2008.
3. Learned Magistrate after examining the complainant and witnesses during enquiry under Section 202 Cr. P. C. found prima facie case against the petitioner and her husband for the offence under Section(s) 420 Indian Penal Code and Section 138 of the Negotiable Instrument Act.
4. Four witnesses were examined on behalf of the complainant before Charge under Section 244 Cr. P. C. The petitioner along with her husband filed a petition for discharge under Section 245 Cr. P.C. on 18.05.2011, which was rejected by the Chief Judicial Magistrate, Muzaffarpur, on 21.01.2012. Thereafter, the petitioner filed Criminal Revision No.19 of 2012 before the Sessions Judge, Muzaffarpur, which was dismissed by the 6th Additional Sessions Judge, Muzaffarpur, by order dated 06.06.2013.
5. It has been submitted on behalf of the petitioner that none of the witnesses examined before Charge have alleged any specific overt act against the petitioner. The Complaint Petition also does not disclose any overt act against this petitioner. This petitioner has not issued any cheque under her signature. The cheque was issued by her husband, Rajeev Kumar Sinha, and continuance of criminal proceeding against this petitioner is abuse of process o
