R.K. Mishra, J.@mdashThe petitioner has approached this Court u/s 482 of the Code of Criminal Procedure to quash the order dated 9.8.1995 passed by the Chief Judicial Magistrate, Patna, in G.R. No.2523 of 1994/Tr. No.626 of 1996, arising out of Kotwali P.S. Case No.226 of 1994, taking cognizance of the offence under Sections 406, 420, 467, 468 and 471 of the Indian Penal Code against the three accused, named in the F.I.R., including the petitioner.
2. In brief the case is that on the basis of the written report of the opposite party no.2, R.P. Singh, Branch Manager, Bihar State Financial Corporation, Branch Office, Naseman Building, Dak Bunglow Road, Patna-1, Kotwali P.S. Case No.226 of 1994 was instituted under Sections 406, 420, 467, 468 and 471 of the Indian Penal Code against the three accused, namely, Smt. Shakuntala Singh, wife of Late Navin Kumar Singh, Baleshwar Singh, the elder brother and Subodh Kumar Singh, the younger brother, of Late Navin Kumar Singh. It has been alleged in the F.I.R. that the Bihar State Financial Corporation (hereinafter referred to as "the Corporation") has sanctioned a term loan of Rs.5.00 lacs vide reference no.567 dated 11.7.1990 to M/s. Arti Metal and Restaurant (hereinafter referred to as "the Firm") under the partnership of Late Navin Kumar Singh and his wife, Smt. Shakuntala Singh. The Firm completed the legal formalities on 20.8.1990 and availed a sum of Rs.4,88,523/- and completed the sanctioned project and went into production, hence, the unavailed amount of Rs.11,477/- is presenting stands as lapsed. The Firm started default in payment of Corporation?s dues, for which the Corporation issued the reminders for payment. In the meantime, Smt. Shakuntala Singh, one of the partners of the Firm, vide letter no.156 dated 7.11.1992 informed the Corporation about the murder of her husband, namely, Navin Kumar Singh, on 22.9.1992, by giving undertaking to run the Firm and taking the responsibility of payment of Corporation?s dues, but as Smt. Shakuntala Singh, failed to pay the same, therefore, the affairs of the Firm was placed for review by High Level Advisory Committee (Legal and Default) Meeting held on 15.1.1993 in which Committee took the decision that Sri Kameshwar Singh (the petitioner), the elder brother of Late Navin Kumar Singh, has appeared before the Committee and assured to pay Rs.1.87 lacs by 15.2.1993, failing which the Committee decided that legal notice to be served and followed by sale of the unit. The Committee also decided to invoke personal guarantee in case dues is not satisfied out of the sale proceeds. As per assurance given by the petitioner, Sri Kameshwar Singh, the Corporation did not receive any payment and, as such, as per the decision of the Committee, legal notice under Sections 20/29 of SFC?s Act, 1951 on 21.4.1993 was issued to him asking the payment of entire outstanding dues within 21 days, but in spite of that no response was received by the Corporation. Hence, the Managing Director of the Corporation ordered for sale of the mortgage assets of the Firm. Seeing the action of the Corporation, Subodh Kumar Singh, the younger brother of Late Navin Kumar Singh, vide letter dated 22.9.1993 submitted two cheques, dated 22.9.1993 and 28.9.1993, each of Rs.25,000/- drawn at Dena Bank, Bakhtiarpur, in favour of the Corporation, further stating in the letter for payment of 25% of total outstanding dues with a prayer for withdrawal of the notice issued by the Corporation. Both the cheques, issued by Subodh Kumar Singh, in favour of the Corporation, were presented to the Banker of the Corporation, but the same were returned with a note that "Not arranged for?. When Subodh Kumar Singh was requested twice by the Corporation, then he vide his letter dated 9.3.1994 assured to pay the amount of Rs.50,000/- by pay order/bank draft by 23.3.1994, with a further request to withhold the legal action regarding bouncing of cheques. The Corporation awaited till 23.3.1994, but he could not make the payment. As such, Smt. Shakuntala Singh, wife of Late Navin Kumar Singh and Kameshwar Singh (the petitioner), the elder brother of Late Navin Kumar Singh, have not only given the false assurance but further conspired alongwith Subodh Kumar Singh, the younger brother of Late Navin Kumar Singh, by issuing false cheques and tried to cheat the Corporation for withholding/defer legal action for recovery of Corporation?s dues, which is Rs.7,62,706.40 (Principal Rs.4,88,528 and interest Rs.2,74,183.40).
3. Learned counsel appearing on behalf of the petitioner submitted that from perusal of the F.I.R. itself, it is clear that the loan had been taken from the Corporation by the Firm, of which Smt. Shakuntala Singh and her husband, Navin Kumar Singh, were partners and two cheques, each of Rs.25,000/-, which are said to be given to the Corporation and are said to be dishonoured, were given by Subodh Kumar Singh, the younger brother of Late Navin Kumar Singh. There is no averment in the F.I.R. showing the complicity of the petitioner constituting the offence under Sections 406, 420, 467, 468 and 471 of the Indian Penal Code.
4. From perusal of the F.I.R., which is Annexure-"1? to this application, it appears that the allegation of taking the term loan of Rs.4,88,523/- from the Corporation is against Smt. Shakuntala Singh and her husband, Late Navin Kumar Singh in the name of their Firm, M/s. Arti Metal and Restaurant and the same has not been paid by them. The affairs of the Firm was placed for review by High Level Advisory Committee (Legal and Default) Meeting held on 15.1.1993 in which it was decided that the petitioner, Kameshwar Singh, was appeared and had given assurance to make the payment of the term loan and on failing which the Committee decided that the legal notice to be served followed by sale of the unit in case of further default in payment with further decision to invoke personal guarantee in case dues is not satisfied out of the sale proceeds. It appears from the impugned order dated 9.8.1995 passed by the Chief Judicial Magistrate, Patna, that the Chief Judicial Magistrate, Patna, on perusal of the chargesheet and the case diary arrived at the conclusion that prima facie the case under Sections 406, 420, 467, 468 and 471 of the Indian Penal Code is made out against the accused including the petitioner and, accordingly, took the cognizance under the aforesaid Sections and ordered to issue summon against them. If the allegation as made in the F.I.R. is taken at its face value and accepted to be true in its entirety, the same do not constitute the offence under Sections 406, 420, 467, 468 and 471 of the Indian Penal Code against the petitioner.
5. Under the aforesaid facts and the circumstances, the impugned order dated 9.8.1995 passed by the Chief Judicial Magistrate, Patna, in G.R. No.2523 of 1994/Tr. No.626 of 1996, arising out of Kotwali P.S. Case No.226 of 1994, taking the cognizance of the offence under Sections 406, 420, 467, 468 and 471 of the Indian Penal Code against the petitioner, appears to be an abuse of the process of the court. Accordingly, the impugned order dated 9.8.1995 passed by the Chief Judicial Magistrate, Patna, in G.R. No.2523 of 1994/Tr. No.626 of 1996, arising out of Kotwali P.S. Case No.226 of 1994, with respect to the petitioner, is hereby quashed and the application is allowed.
