Patna High Court
Ashok Kumar SharmaversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
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
- Code of Criminal Procedure, 1973 — s. 239, 482
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
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.