Gobind Prasad Son of Late Jamuna Prasad Vs. the State of Bihar, - Court Judgment

Excerpt:
- orderabhijit sinha, j.1. the informant of muzaffarpur (town) p.s. case no. 293 of 1997 has preferred this application for quashing of the order dated 20.6.2007 passed by sri daroga singh, erstwhile lst additional sessions judge, muzaffarpur, allowing cr. revision no. 266 of 1999, whereby he set aside the order dated 12.10.1999 passed by the then the learned sub divisional judicial magistrate, muzaffarpur (east) in the aforesaid police case, whereby he had refused to discharge the accused under section 245 cr.p.c.2. the petitioner had submitted a written statement before the town police station inter alia alleging that all the three accused persons named therein had a wholesale business in sutapatti of clothes and also have a rolling mill in the bela industrial estate and that accused girdhari lal tulsyan was the managing director of the said rolling mill and his two sons had equal share therein as partners. it is alleged that some 7 months back all the three accused approached him and apprised him of their rolling mill coming out with share issues which had good prospects and on pressuring and persuasion being exerted a sum of rs. 2,50,000/-was given by the petitioner herein for which accused girdhari lal granted a money receipt. however, the prospective share issues never came into the market and when a request was made to return the money the accused persons started giving evasive reply and when pressure was put on them gopal prasad tulsyan allegedly instituted a false case against the petitioner and his men being bela p.s. case no. 21 of 1996 which was found false in course of investigation. in the aforesaid premise the petitioner herein was apprehensive that the accused persons with dishonest intention had misappropriated the amount advanced to them by way of purchasing shares.3. the submissions on behalf of the petitioner is that the learned chief judicial magistrate, muzaffarpur on submission of charge sheet has rightly taken cognizance under section 418, 420 and 406 ipc and the learned sub divisional judicial magistrate, muzaffarpur (east) to whom the case was transferred had rightly rejected the prayer for discharge as filed by the accused persons. the grievance raised by the petitioner is against the order of the revisional court which had set aside the order holding cause of action to be that in the nature of civil dispute which was based on order of this court in cr. misc. no. 11446 of 1998 passed in the bail matter of accused gopal prasad tulsyan wherein it had been held that the dispute was of a civil nature. the submissions of the petitioner is that observations passed in bail matters are not final findings and are 'obiter dicta'. it was also submitted that the accused persons had induced the petitioner with false assurance to invest in shares to be issued by their company and having received the money had neither issued the share certificates nor had returned the money and had thereby cheated the petitioner and had also misappropriated the same which invites criminal liability.4. assailing the submissions advanced by the learned counsel for the petitioner it was submitted on behalf of the accused that the allegations of the petitioner are unfounded inasmuch as they had never approached the petitioner or induced him to invest in the share of the company and to the contrary on the request of the petitioner the amount given by him as loan was adjusted by placing them in shares in the company and the shares were transferred in the name of petitioner after fulfilling the procedure and submission of transfer deeds as per law and the same is incorporated in the case diary. as a matter of fact 25000 shares of the company had been transferred in favour of the petitioner. it was also submitted that amount loaned out was not for purchasing shares but taken as loan towards the business of the company of the accused.5. in g. sagar suri v. the state of u.p. reported in : (2000) 2 scc 636, the apex court had observed that in exercise of its jurisdiction under section 482 cr.p.c. the high court is not to examine the matter superficially and has to see if a matter which is essentially of a civil nature has been given a cloak of criminal offence. the criminal proceedings are not a shortcut of other remedies available in law and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking the jurisdiction of criminal courts since that would amount to be an abuse of process of law.6. in the instant case money was allegedly advanced to the accused for purchase of shares which were to be realized in the market but the same was never released and notwithstanding the repeated requests the money advanced had not been returned. apparently the entire transaction amounts to a civil dispute where money advanced had not been returned and the case apparently had been lodged to secure refund of the money allegedly advanced. apparently the same amounts to be a commercial transaction for which the proper remedy would be before the civil court and no criminal liability can be fastened on the accused persons.7. having given my anxious thoughts to the matter in issue i find the order of the revisional court to be fully justified and calls for no interference. accordingly there being no merit in this application the same is dismissed.

Judgment:
ORDER

Abhijit Sinha, J.

1. The informant of Muzaffarpur (Town) P.S. Case No. 293 of 1997 has preferred this application for quashing of the order dated 20.6.2007 passed by Sri Daroga Singh, erstwhile lst Additional Sessions Judge, Muzaffarpur, allowing Cr. Revision No. 266 of 1999, whereby he set aside the order dated 12.10.1999 passed by the then the learned Sub Divisional Judicial Magistrate, Muzaffarpur (East) in the aforesaid police case, whereby he had refused to discharge the accused under Section 245 Cr.P.C.

2. The petitioner had submitted a written statement before the Town Police Station inter alia alleging that all the three accused persons named therein had a wholesale business in Sutapatti of clothes and also have a rolling mill in the Bela Industrial Estate and that accused Girdhari Lal Tulsyan was the Managing Director of the said rolling mill and his two sons had equal share therein as partners. It is alleged that some 7 months back all the three accused approached him and apprised him of their rolling mill coming out with share issues which had good prospects and on pressuring and persuasion being exerted a sum of Rs. 2,50,000/-was given by the petitioner herein for which accused Girdhari Lal granted a money receipt. However, the prospective share issues never came into the market and when a request was made to return the money the accused persons started giving evasive reply and when pressure was put on them Gopal Prasad Tulsyan allegedly instituted a false case against the petitioner and his men being Bela P.S. Case No. 21 of 1996 which was found false in course of investigation. In the aforesaid premise the petitioner herein was apprehensive that the accused persons with dishonest intention had misappropriated the amount advanced to them by way of purchasing shares.

3. The submissions on behalf of the petitioner is that the learned Chief Judicial Magistrate, Muzaffarpur on submission of charge sheet has rightly taken cognizance under Section 418, 420 and 406 IPC and the learned Sub Divisional Judicial Magistrate, Muzaffarpur (East) to whom the case was transferred had rightly rejected the prayer for discharge as filed by the accused persons. The grievance raised by the petitioner is against the order of the revisional court which had set aside the order holding cause of action to be that in the nature of civil dispute which was based on order of this Court in Cr. Misc. No. 11446 of 1998 passed in the bail matter of accused Gopal Prasad Tulsyan wherein it had been held that the dispute was of a civil nature. The submissions of the petitioner is that observations passed in bail matters are not final findings and are 'obiter dicta'. It was also submitted that the accused persons had induced the petitioner with false assurance to invest in shares to be issued by their Company and having received the money had neither issued the share certificates nor had returned the money and had thereby cheated the petitioner and had also misappropriated the same which invites criminal liability.

4. Assailing the submissions advanced by the learned Counsel for the petitioner it was submitted on behalf of the accused that the allegations of the petitioner are unfounded inasmuch as they had never approached the petitioner or induced him to invest in the share of the Company and to the contrary on the request of the petitioner the amount given by him as loan was adjusted by placing them in shares in the Company and the shares were transferred in the name of petitioner after fulfilling the procedure and submission of transfer deeds as per law and the same is incorporated in the case diary. As a matter of fact 25000 shares of the Company had been transferred in favour of the petitioner. It was also submitted that amount loaned out was not for purchasing shares but taken as loan towards the business of the Company of the accused.

5. In G. Sagar Suri v. The State of U.P. reported in : (2000) 2 SCC 636, the Apex Court had observed that in exercise of its jurisdiction under Section 482 Cr.P.C. the High Court is not to examine the matter superficially and has to see if a matter which is essentially of a civil nature has been given a cloak of criminal offence. The criminal proceedings are not a shortcut of other remedies available in law and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking the jurisdiction of criminal courts since that would amount to be an abuse of process of law.

6. In the instant case money was allegedly advanced to the accused for purchase of shares which were to be realized in the market but the same was never released and notwithstanding the repeated requests the money advanced had not been returned. Apparently the entire transaction amounts to a civil dispute where money advanced had not been returned and the case apparently had been lodged to secure refund of the money allegedly advanced. Apparently the same amounts to be a commercial transaction for which the proper remedy would be before the Civil Court and no criminal liability can be fastened on the accused persons.

7. Having given my anxious thoughts to the matter in issue I find the order of the revisional court to be fully justified and calls for no interference. Accordingly there being no merit in this application the same is dismissed.