Patna High Court
Lalan Pathak @ Kamal Nayan PathakversusState Of Bihar and Anr
- Decided
- Disposal
- ALLOWED
- Bench
- SUNIL DUTTA MISHRA
Holding
The order taking cognizance against the petitioner is not sustainable and is quashed.
Summary
The petitioner, Lalan Pathak, was named in a complaint alleging cheating under IPC Section 420 and a dishonoured cheque under NI Act Section 138 arising from a disputed land sale. The complainant had paid part consideration to the accused seller, Babita Devi, and a cheque issued for refund was dishonoured. The Additional Chief Judicial Magistrate took cognizance of the offences against the petitioner, who then filed an application under CrPC Section 482 seeking quash. The High Court examined the complaint, the complainant’s statement, and the inquiry material and found no specific allegation linking the petitioner to the alleged cheating or cheque dishonour. It held that the allegations against the petitioner were vague, omnibus, and did not disclose the essential ingredients of the offences, rendering the proceeding an abuse of process. Consequently, the order of cognizance was quashed and the criminal proceeding against the petitioner was set aside.
Issues considered
- Whether the order taking cognizance against the petitioner under IPC Section 420 and NI Act Section 138 is maintainable.
- Whether the High Court can exercise inherent jurisdiction under CrPC Section 482 to quash the proceeding.
- Whether the allegations in the complaint disclose a prima facie offence by the petitioner.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 200, 202, 482
- Indian Penal Code — s. 420
- Negotiable Instruments Act, 1881 — s. 138
Subjects
- Criminal Procedure
- Section 482
- Quash Order
- Cheating
- Dishonour of Cheque
- Abuse of Process
- Inherent Jurisdiction
- Land Sale Dispute
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.3425 of 2018
Arising Out of PS. Case No.-903 Year-2015 Thana- MUNGER COMPLAINT CASE
District- Munger
======================================================
Lalan Pathak @ Kamal Nayan Pathak, S/o Late Saryug Pathak, Resident of
Mohalla- Walipur, P.S.- Jamalpur, District- Munger.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Hira Rani, W/o Sanjeev Kumar, Resident of Sadar Bazar Khalasi, Mohalla-
Mohanpur Kali No.2, P.S.- Jamalpur, District- Munger.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Pankaj Kumar Sinha, Advocate
Mr. Raunak Kumar Singh, Advocate
For the State : Mr. Satyendra Narayan Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL ORDER
8 21-04-2026 Heard learned counsel for the petitioner as well as
learned APP for the State.
2. The present application has been filed by the
petitioner under Section 482 of the Code of Criminal Procedure,
1973 (hereinafter referred to as ‘Cr.P.C.’) for quashing the order
dated 13.02.2017 passed by the learned Additional Chief
Judicial Magistrate- IV, Munger (hereinafter referred to as
‘Magistrate’) in connection with Complaint Case No. 903 C of
2015, wherein the learned Magistrate has taken cognizance of
the offences under Section 420 of the Indian Penal Code, 1860
and under Section 138 of the Negotiable Instruments Act, 1881
against three accused persons including the petitioner herein.
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3. Brief facts of the case, as emerging from the
complaint petition and the materials available on record, are that
the complainant (O.P. No.2) entered into an agreement for
purchase of a piece of land with accused Babita Devi for a total
consideration of Rs.12,00,000/-. It is alleged that accused Babita
Devi, by representing that her husband had been traceless for
about 10 years, got the land mutated in her name and, through
the mediation of co-accused Lalan Pathak (petitioner herein)
acting as a commission agent, negotiated the sale with the
complainant (O.P. No.2). Pursuant to such agreement, the
complainant paid a sum of Rs.1,31,000/- in cash on 20.08.2014
and subsequently paid Rs. 1,70,000/- through cheque on
21.11.2014, thus making a total payment of Rs. 3,01,000/- as
part consideration. A deed of agreement (Zerbaianama) was
also executed between the parties, fixing a stipulated period for
execution and registration of the sale deed, i.e., prior to
19.07.2015. It is further alleged that despite readiness and
willingness on the part of the complainant (O.P. No.2), the sale
deed was not executed within the agreed time. The complainant
is said to have sent a legal notice dated 14.07.2015 to accused
Babita Devi, upon which she sought further time and assured
that in case the sale deed was not executed, the amount received
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would be refunded. Subsequently, on 15.06.2015, accused
Babita Devi is alleged to have issued a cheque of Rs. 3,01,000/-
in favour of the complainant (O.P. No.2) towards repayment of
the amount. However, when the said cheque was presented for
encashment, the same was dishonoured on the ground of
“insufficient funds”. Thereafter, despite service of legal notice
demanding payment, the accused persons failed to make good
the amount. Further alleging that she has been cheated and
subjected to wrongful acts by the accused persons, the
complainant (O.P. No.2) instituted Complaint Case No. 903 C of
2015.
4. Upon perusal of the materials available on record
and after inquiry under Sections 200 and 202 of the Cr.P.C.,
learned Magistrate took cognizance of the offences under
Section 420 of the Indian Penal Code and Section 138 of the
Negotiable Instruments Act against Babita Devi, Shankar
Mandal and Lalan Pathak (petitioner). Being aggrieved by the
impugned order of cognizance dated 13.02.2017, the petitioner
herein has filed the present Criminal Miscellaneous Application
to quash the same against him.
5. Learned counsel for the petitioner submits that the
impugned order taking cognizance is wholly illegal, arbitrary
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and has been passed without application of judicial mind.
Learned counsel submits that even on a bare perusal of the
complaint petition as well as the statement of the complainant
(O.P. No.2) recorded on solemn affirmation and the inquiry
witnesses examined, no specific allegation whatsoever is made
against the present petitioner. It is submitted that the entire
dispute, as would be evident from the complaint itself, is
primarily between the O.P. No.2 and accused Babita Devi with
regard to a transaction of sale of land and alleged non-refund of
money. The petitioner has neither been attributed any role in the
negotiation nor in the execution of any agreement, nor has he
been alleged to have received any part of the consideration
amount or issued the cheque in question. He further submits that
the petitioner has been roped in the present case on the basis of
vague, general and omnibus allegations, which do not disclose
the commission of any offence under Section 420 IPC or
Section 138 of the Negotiable Instruments Act.
6. Learned counsel for the petitioner further submits
that the petitioner has been falsely implicated due to ulterior
motives and personal enmity. Learned counsel submits that the
essential ingredients constituting the offences alleged are
completely absent so far as the petitioner is concerned,
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inasmuch as there is no material to suggest any dishonest
intention at the inception of the transaction or any involvement
in the issuance or dishonour of the cheque. It is submitted that
the learned Magistrate has mechanically taken cognizance
without considering the materials on record in their proper
perspective and without recording any satisfaction regarding the
involvement of the petitioner. Learned counsel, therefore,
submits that continuance of the criminal proceeding against the
petitioner would amount to abuse of the process of the Court
and is fit to be quashed in exercise of inherent jurisdiction.
7. Per contra, learned APP for the State submits that
the impugned order has been passed after due consideration of
the complaint petition, the statement of the complainant on
solemn affirmation as well as the materials collected during the
inquiry, which does not call for any interference by this Court in
exercise of its inherent jurisdiction.
8. Despite valid service of notice and repeated
opportunities, no one appears on behalf of the O.P. No.2 to
contest the present application. Accordingly, this Court proceeds
to consider the matter in absence of O.P. No. 2.
9. Having heard learned counsel for the petitioner and
learned APP for the State, and upon perusal of the materials
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available on record, including the complaint petition, the
statement of the complainant on solemn affirmation and the
inquiry witnesses examined under Section 202 of the Cr.P.C.,
this Court proceeds to examine whether the impugned order
taking cognizance warrants interference by this Court in
exercise of inherent jurisdiction under Section 482 of the
Cr.P.C.
10. It is well settled that the inherent jurisdiction of
this Court under Section 482 of the Cr.P.C. is to be exercised
sparingly, with circumspection and only in cases where the
allegations made in the complaint, even if taken at their face
value and accepted in their entirety, do not disclose the
commission of any offence or where the continuation of the
criminal proceeding would amount to abuse of the process of
the Court. In matters relating to offences under Section 420 of
the Indian Penal Code and Section 138 of the Negotiable
Instruments Act, the Court is required to examine whether the
essential ingredients of the offences, namely, dishonest intention
at the inception of the transaction in the case of cheating, and
issuance of cheque by the accused towards discharge of a
legally enforceable debt or liability in the case of dishonour of
cheque, are prima facie made out from the materials on record.
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If such foundational ingredients are absent, the criminal
proceeding cannot be permitted to continue merely on the basis
of vague or omnibus allegations, and interference under Section
482 of the Cr.P.C. would be justified to secure the ends of
justice and to prevent abuse of the process of the Court.
11. Upon perusal of the complaint petition as well as
the statement of the complainant (O.P. No.2) on solemn
affirmation and the materials collected during inquiry under
Section 202 of the Cr.P.C., it transpires that the entire allegation
primarily revolves around a transaction of sale of land between
the complainant (O.P. No.2) and accused Babita Devi. The
specific case of the O.P. No.2 is that she had paid part
consideration amount to accused Babita Devi pursuant to an
agreement for sale and that upon failure to execute the sale
deed, a cheque issued by the said accused towards refund of
money was dishonoured. From the materials on record, it prima
facie appears that the role attributed is essentially against
accused Babita Devi, who is alleged to have received the
consideration amount and issued the cheque in question. The
allegations, thus, predominantly disclose a dispute arising out of
a contractual transaction between the O.P. No.2 and Babita
Devi.
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12. So far as the present petitioner is concerned, a
careful scrutiny of the complaint petition and the statement on
solemn affirmation does not reveal any specific or direct
allegation attributing any overt act to him in relation to the
alleged transaction. The petitioner has neither been shown to be
a party to the agreement nor alleged to have received any part of
the consideration amount or issued the cheque in question.
There is also no material to indicate that the petitioner had any
role in inducing the O.P. No.2 or that he possessed any dishonest
intention at the inception of the transaction. The allegations,
insofar as the petitioner is concerned, appear to be vague and
omnibus in nature, without any supporting material indicating
his involvement in the commission of the alleged offences.
13. In view of the aforesaid factual matrix, this Court
finds that the present case squarely falls within the principles
laid down by the Hon’ble Supreme Court in State of Haryana
and Ors. v. Bhajan Lal and Ors., reported in 1992 Supp (1)
SCC 335 and Pradeep Kumar Kesarwani v. State of Uttar
Pradesh & Anr., reported in 2025 SCC OnLine SC 1947,
wherein categories of cases have been illustratively enumerated
where exercise of inherent powers under Section 482 of the
Cr.P.C. would be justified. In particular, the present case falls
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within the category where the allegations made in the complaint,
even if taken at their face value and accepted in entirety, do not
prima facie constitute any offence against the petitioner and also
where the proceedings appear to have been instituted with mala
fide intention and for wreaking vengeance. Accordingly,
continuation of the criminal proceeding against the petitioner
would amount to abuse of the process of the Court and would
not serve the ends of justice.
14. Accordingly, in view of the discussions made
hereinabove and in the facts and circumstances of the case, this
Court is of the considered opinion that the impugned order dated
13.02.2017 taking cognizance against the petitioner is not
sustainable in the eye of law. The same is, therefore, liable to be
quashed and is hereby set aside, so far as the present petitioner
is concerned.
15. Resultantly, the entire criminal proceeding arising
out of Complaint Case No. 903 C of 2015, pending in the court
of learned Additional Chief Judicial Magistrate-IV, Munger,
stands quashed qua the petitioner.
16. The present Criminal Miscellaneous Application,
accordingly, stands allowed.
17. Let a copy of this order be communicated to the
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court concerned forthwith.
(Sunil Dutta Mishra, J)
Ritik/-
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