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Patna High Court

Ashok Kumar SharmaversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Court held that the magistrate's rejection was unsustainable and the proceeding was an abuse of process, thereby quashing the order and discharging the petitioner.

Summary

The petitioner, Ashok Kumar Sharma, filed a discharge application under Section 239 of the Criminal Procedure Code after a magistrate rejected it on the basis that he had only attempted to commit cheating by allegedly obtaining an educational loan using a false affidavit. The petitioner contended that the magistrate erred in law because the essential ingredients of the offence were absent. The State opposed the petition, while the bank’s counsel also appeared. The High Court examined the magistrate’s reasoning and held that continuing the criminal proceeding would constitute an abuse of the process of law, especially since no cheating was proven and the petitioner is a student. Invoking its inherent powers under Section 482 CrPC, the Court quashed the magistrate’s order and discharged the petitioner.

Issues considered

  • Whether the magistrate erred in rejecting the discharge application under Section 239 CrPC on the ground of attempted cheating.
  • Whether the alleged facts constitute the offence of cheating under the Indian Penal Code.
  • Whether the continuation of the criminal proceeding amounts to an abuse of the process of law warranting exercise of inherent powers under Section 482 CrPC.

Legislation cited

Subjects

  • cheating
  • discharge application
  • Section 239 CrPC
  • Section 482 CrPC
  • abuse of process
  • quash order
  • educational loan fraud
  • criminal proceeding
  • high court

Judgment

                       IN THE HIGH COURT OF JUDICATURE AT PATNA
                               CRIMINAL MISCELLANEOUS No.19194 of 2016
                         Arising Out of PS. Case No.-116 Year-2011 Thana- RIGA District- Sitamarhi
                  ======================================================
                  Ashok Kumar Sharma son of Late Rameshwar Lal Sharma, resident of
                  village- Riga Mill Bazar, P.S.- Riga, District- Sitamarhi

                                                                                      ... ... Petitioner/s
                                                         Versus
            1.    The State of Bihar
            2.    The Branch Manager, S.B.I., Riga Branch, Sitamarhi Bihar

                                                         ... ... Opposite Party/s
                  ======================================================
                  Appearance :
                  For the Petitioner/s     :        Mr. Vijay Anand
                  For the Opposite Party/s :        Mr. S.Ehteshamuddinapp
                  For the Bank             :        Mr. Binod Bihari Sinha, Advocate
                                                    Mr. Ajay Dutt Mishra, Advocate
                                                    Mr. Amarjeet Choudhary, Advocate
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
                                        ORAL ORDER

10   08-01-2026                  Heard the learned counsel for the petitioner, the

                    learned counsel for the State and the learned counsel for the

                    Bank.

                                 2. The present application has been filed for quashing

                    the order dated 09.12.2015 passed by S.D.JM., Sitamarhi in Tr.

                    No. 1356/2015, G.R.NO. 1784/2011 arising out of Riga P.S.

                    Case No. 116/2011 by which the discharge application filed by

                    the petitioner u/s 239 Cr.P.C. was rejected observing therein that

                    although the offence of cheating is not completed but petitioner

                    has tried to committed offence.

                                 3. The short facts of the case are that the Opposite

                    Party No. 2, the Branch Manager of SBI Riga Branch, lodged a
Patna High Court CR. MISC. No.19194 of 2016(10) dt.08-01-2026
                                            2/3




          written report on 08.07.2011 alleging that the petitioner

          attempted to obtain an educational loan in the name of his son

          by submitting a false affidavit stating that no prior loan had been

          taken from any bank. It is further alleged that the petitioner had

          previously availed a loan from SBI Bazar Branch, Sitamarhi in

          the name of his business firm "Durga Lime and Chemical

          Industry", and subsequently sold the property without repaying

          the loan.

                       4. Learned counsel for the petitioner submits that the

          learned Magistrate has committed a manifest error of law in

          rejecting the discharge application by observing that although

          the offence of cheating is not completed, the petitioner has

          “tried to commit the offence”. He further submits that no

          offence as alleged against the petitioner is made out.

                       5. On the other hand, learned A.P.P. for the State

          opposes the application.

                       6. I have heard and considered the submissions of the

          parties and have gone through the records of the case.

                       7. After careful perusal of the materials available on

          record and the impugned order, this Court finds that the

          reasoning adopted by the Court below, while rejecting the

          discharge petition, is legally unsustainable. It is well settled that
            Patna High Court CR. MISC. No.19194 of 2016(10) dt.08-01-2026
                                                        3/3




                      where the basic ingredients of the alleged offence are absent and

                      continuation of the criminal proceeding would amount to abuse

                      of the process of court, the inherent powers of this Court under

                      Section 482 Cr.P.C. can and ought to be exercised to secure the

                      ends of justice.

                                   8. In the present case, this Court is of the opinion that

                      the continuation of the criminal proceeding against the

                      petitioner would be an abuse of the process of law and the

                      impugned order has been passed without application of mind.

                      From the perusal of the impugned order rejecting the discharge

                      application itself it is clear that the cheating was not done. In

                      these circumstances, when the offence has not been committed,

                      there is no need of prosecuting the petitioner who is a student.

                                   9. In view of the discussions made above, the present

                      application stands allowed. Accordingly, the order dated

                      09.12.2015 passed by S.D.JM., Sitamarhi in Tr. No. 1356/2015,

                      G.R.NO. 1784/2011 arising out of Riga P.S. Case No. 116/2011

                      is hereby quashed. The petitioner stands discharged in Riga P.S.

                      Case No. 116 of 2011.



                                                              (Sandeep Kumar, J)
Shishir/-

U       T


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