Jharkhand High Court

Jitendra Prakash Sharma @ J.P. ... vs The State Of Jharkhand on 13 October, 2022

                                                    1                 Cr.M.P. No. 3265 of 2018


                    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr.M.P. No. 3265 of 2018
             1.   Jitendra Prakash Sharma @ J.P. Sharma, aged about 58 years, son of
                  Sheo Lochan Sharma, Resident of New Area, Sikandarpur, Sarya, P.O.
                  & P.S. Sikandarpur, Sarya, District- Muzzafarpur (Bihar)
             2.   Alok Nischal @ Aalok Kumar, aged about 31 years, son of late Yugal
                  Kishore Sahu, Resident of Court Road, Beside Vijay Medical Hall,
                  Lohardaga, P.O., P.S. & District- Lohardaga
             3.   Rajiv Kumar Ranjan @ Rajeev Ranjan, aged about 42 years, son of
                  Hare Krishna Ram, Resident of Sh. Asstt. Allahabad Bank, Bankmore,
                  Dhanbad, P.O. & P.S. Bankmore, District- Dhanbad ... Petitioners

                                        -Versus-
             1.   The State of Jharkhand
             2.   Khusboo Kumari @ Puja Kumari, D/o Hira Lal Sah, resident of near
                  Trimurti Mandir, Binod Nagar, P.O., PO.S. & District- Dhanbad
                                                                     ... Opposite Parties
                                            -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----

             For the Petitioners            : Ms. Amrita Sinha, Advocate

             For the Opposite Party-State   : Ms. Kumari Rashmi, A.P.P.
             For Opposite Party No.2        : None
                                            -----

06/13.10.2022. Heard Ms. Amrita Sinha, learned counsel for the petitioners and

Ms. Kumari Rashmi, learned counsel for the State.

2. Notice upon opposite party no.2 has already been effected. On

10.08.2022, this matter was adjourned with a view to provide one more

opportunity to opposite party no.2.

3. Today, on repeated calls nobody has responded on behalf of opposite

party no.2. It appears that opposite party no.2 has lost interest to contest

this case. Accordingly, the matter has been heard on merit in absence of

opposite party no.2.

4. This petition has been filed for quashing the entire criminal

proceeding in connection with C.P. Case No.2403/2017 as well as the order

dated 27.04.2018 passed by the learned Judicial Magistrate, 1 st Class,

Dhanbad, whereby the petitioners have been summoned, pending in the

court of the learned Judicial Magistrate, 1st Class, Dhanbad.

5. The complaint case has been filed by opposite party no.2 alleging

therein on 30.07.2016 at about 03:00 P.M., all the accused /petitioners

entered into the house of the complainant, threw all the household articles

and accused J.P. Sharma, Chief Manager, took out cash Rs.2,25,000/- from

the Godrej Almirah and Alok Kumar, Junior Manager took away gold and

silver ornaments worth Rs.2,00,000/-. It has been further alleged that all

the accused persons hurled abuses and also assaulted the complainant and

her mother. It has also been alleged that the accused persons also used

criminal force to the complainant and her mother with intent to outrage her

modesty and they also threatened to implicate them in false case if they will

not withdraw the earlier case filed against them.

6. Ms. Amrita Sinha, learned counsel for the petitioners submits that

earlier the case was investigated by the police and charge-sheet has been

submitted whereby the petitioners have not been sent up for trial. She

further submits that on the protest petition the learned court has taken

cognizance. According to her, the cognizance order is also non-speaking

order and no reason has been assigned in the cognizance order as to why

the learned court has differed with the final form and has taken the

cognizance. She also submits that even what are the prima facie materials

against the petitioners, have not been disclosed in the cognizance order.

She further submits that the father and mother of the complainant had

taken loan from the Bank in question and the petitioners are the employees

of the Bank and petitioner no.1 has retired. She further submits that

demand notice under Section 13(4) of the Securitization and Reconstruction

of Financial Assets and Enforcement of Security Interest (SARFAESI) Act,

2002 has been issued and possession of the property was taken over

pursuant to the order of the learned Magistrate and, thereafter, this

complaint case has been filed. On these grounds, she submits that this case

is filed maliciously and it amounts to abuse of process of law.

7. Ms. Kumari Rashmi, learned counsel for the State fairly accepts that

the police has investigated the case and final form has been submitted. She

submits that on protest petition, the learned court has taken cognizance.

8. In view of the above submissions of the learned counsel for the

parties, the Court has gone through the materials on the record and

finds that admittedly the final form was submitted by which the

petitioners were not sent up for trial. It appears that Hira Lal Sah and

Kusum Devi, father and mother of the opposite party no.2 had taken a loan

under credit facilities amounting to Rs. 6 Lakhs as cash credit facility

on 10.11.2006 and they have failed to repay the loan amount in spite of

several request of the Bank and therefore demand notice under

Section 13(4) of SARFAESI Act was issued and thereafter steps were taken

for taking possession of the mortgaged property and that was taken

in presence of the concerned District Magistrate under Section 14 of

the SARFAESI Act. Looking to Section 32 of SARFAESI Act, it appears that

bank officials are protected under that Act if they acted in good faith

in discharging official duty. It appears from Annexure-3 that opposite

party no.2 has also implicated the bank officials maliciously in C.P. Case

No.1827/2013. It appears that this petition has been filed maliciously

which is also fortified in view of the fact that in spite of opportunity

provided to opposite party no.2, she has chosen not to appear before

this Court. Moreover looking to the cognizance order, it transpires that the

learned court has not disclosed any reason why protest petition is

being accepted by the learned court. What are the prima facie

materials brought on record by way of filing the protest petition, are

also not disclosed in the cognizance order. It appears that this is a case

of malicious prosecution and it has been brought by filing as a counter

blast case. A reference may be made to the judgment passed

by the Hon'ble Supreme Court in Rajiv Thapar v. Madan Lal Kapoor;

[(2013) 3 SCC 330].

9. Paragraph 30 of the said judgment reads as under:

"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:

30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?

30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."

10. In view of the above facts, reasons and analysis, the entire criminal

proceeding in connection with C.P. Case No.2403/2017 as well as the order

dated 27.04.2018 passed by the learned Judicial Magistrate, 1 st Class,

Dhanbad, pending in the court of the learned Judicial Magistrate, 1 st Class,

Dhanbad is, hereby, quashed.