Chandan Prasad Mahato Vs Dharma Prakash Shah

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GAHC010158752018

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2025:GAU-AS:12498

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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

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Crl.Pet. No. 692/2018

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Chandan Prasad Mahato, S/O Late Gora Chand Mahato, Resident of Village-Kurchi, (Ratanpur), P.O. and P.S. Govindpur, District- Dhanbad, State-Jharkhand.

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…..Petitioner

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-Versus-

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Dharma Prakash Shah, S/O Sri Bhrigu Nath Shah, Resident of Village-No.1, Karbi Path, Jyotikuchi, P.O. -Sawkuchi, P.S. Fatashil Ambari, DistrictKamrup (M), Guwahati-04, Assam.

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……Respondent

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For Petitioner 1. Mr.P.J. Saikia, Senior Advocate.

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Ms. M. Kechii, Advocate.

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For Respondent : Mr. L.K. Borah, Advocate.

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Date of Hearing : 01.05.2025 Date of Judgment : 10.09.2025

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BEFORE

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HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

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JUDGMENT AND ORDER (CAV)

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1. Heard Mr. P.J. Saikia, the learned Senior Counsel, assisted by Ms. M. Kechii, the learned counsel for the petitioner. Also heard Mr. L.K. Borah, the learned counsel for the respondent.

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2. This application under Section 482 of the Code of Criminal Procedure, 1973, has been filed by the petitioner, namely, Chandan Prasad Mahato impugning the order dated 21.12.2017, passed by the learned Additional Chief Judicial Magistrate, Kamrup(M), Guwahati in C.R. Case No. 634^c /2016, whereby the said Court took cognizance of offence under Section 420 of the Indian Penal Code, 1860 against the present petitioner and issued processes to him.

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3. The facts relevant for consideration of the instant criminal petition, in brief, are that:-

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i. The present respondent, namely, Dharma Prakash Shah had filed a complaint before the Court of the learned Additional Chief Judicial Magistrate, Kamrup(M), Guwahati against the present petitioner and one Shashank Shekhar, alleging commission of

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offence under Sections 120(B)/ 420/406/32 of the Indian Penal Code, 1860.

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ii. In the said complaint, it was alleged that the complainant was approached by the present petitioner and one Shashank Shekhar in the month of January, 2016 and he was given an assurance that they can manage job for the complainant (present respondent) in the Steel Authority of India (SAIL), as the father of the accused No. 1 Shashank Shekhar is working in a high administrative post in the Steel Authority of India (SAIL).

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iii. It is also alleged in the complaint that the accused persons asked the respondent (complainant) that if he pays Rs. 5,00,000/-(Rupees Five Lakhs only) then they will be in position to offer a prestigious job in the company through the father of the accused No. 1.

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iv. Believing the assurance given by the accused persons, the respondent somehow managed to collect an amount of Rs. 4,50,000/- (Rupees Four Lakhs and Fifty Thousand only) and paid the said amount to the accused Shashank Shekhar on 09.02.2016 at about 6:00 PM. The said accused duly

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received the amount from the complainant (respondent) and acknowledged the receipt of the same by issuing assurance letter-cum-money receipt on 09.02.2016 with a promise to provide a guaranteed permanent full time job in the Steel Authority of India(SAIL).

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v. It is also alleged that the accused No. 1, even assured to refund the said money, along with an interest of 10% per month, in the event he fails to provide job to the respondent.

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4. Mr. P.J. Saikia, the learned Senior Counsel for the petitioner has submitted that the Trial Court took cognizance of the offence under Sections 406/420/34 of the Indian Penal Code,1860 by order dated 02.08.2016, passed in C.R. Case No. 634^c /2016.

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5. Being aggrieved by the said order, the present petitioner preferred a criminal petition before this Court, which was registered as Criminal Petition No. 07/2017.

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6. The learned Senior Counsel for the petitioner has submitted that the said criminal petition was allowed, and by order dated 03.08.2017, passed in Criminal Petition No. 07/2017, the order dated 02.08.2016, passed in C.R. Case No. 634^c /2016 was set aside and the Trial Court was directed to reconsider the matter and to pass a fresh order in accordance with law. Thereafter, by

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the order, which has been impugned in this instant criminal petition, i.e. order dated 21.12.2017, passed in C.R. Case No. 634^c /2016, the Trial Court took cognizance under Section 420 of the Indian Penal Code, 1860 against both the accused persons, including the present petitioner.

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7. The learned Senior Counsel for the petitioner has submitted that the Trial Court had erred in taking cognizance against the present petitioner under Section 420 of the Indian Penal Code, 1860, as from bare perusal of the complaint petition, it would reveal that the main accusation in the complaint petition is levelled against co-accused Shashank Shekhar by the present respondent.

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8. He submits that neither money was taken by the present petitioner nor any assurance was given by the present petitioner to the respondent regarding providing a job in lieu of the money.

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9. He also submits that the petitioner’s name has been included in the complaint filed by the respondent as a counter-blast. He submits that prior to lodging of the FIR by the present respondent on 03.03.2016, the present petitioner has lodged an FIR on 01.12.2015, wherein, specific accusations were made against the main accused Smti Razina Laskar as well as the present respondent, Dharma Prakash Shah. In the said FIR, it

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was alleged that the present petitioner was assured by the respondent Dharma Prakash Shah that he knows the lady named, Smti Razina Laskar, who can provide government job by taking money.

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10. It is also submitted that as in the FIR lodged by the present petitioner on 01.12.2015, the name of the respondent was included. Hence, as a matter of counter-blast and out of vengeance, the name of the present petitioner has been included in the complaint filed by the respondent.

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11. The learned Senior Counsel for the petitioner has also submitted that the respondent in filing the complaint has suppressed the fact that a few days prior to the lodging of the complaint, the present respondent had filed another FIR on 20.01.2016 against Smti Razina Laskar wherein the name of the present petitioner has been mentioned as a victim in the said case.

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12. The learned Senior Counsel for the petitioner has submitted that in the backdrop of the circumstances of this case, i.e. filing of two earlier cases, both of which pertains to demanding of money, in lieu of the assurance to offer job, it is highly improbable that again the respondent, who gave money on the same assurance of getting job in the month of February would himself get involved in commission of offence of such nature.

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13. The learned Senior Counsel for the petitioner has also submitted that the learned Magistrate also erred in taking cognizance against the present petitioner, without following the procedure prescribed under Section 202 of the Code of Criminal Procedure, 1973 inasmuch as, the present petitioner resides beyond the jurisdiction of the Court, in which the complaint case is pending.

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14. In support of his submissions, the learned Senior Counsel has cited a ruling of the Apex Court in the case of “Chunduru Siva Ram Krishna And Another Vs. Peddi Ravindra Babu And Another,” reported in “(2009) 11 SCC 203” wherein it was observed as follows :-

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“33. We have carefully examined the chargesheet which is a part of the record and which was prepared on the basis of the aforesaid report dated 2-7-2005 and also on the basis of the investigation carried out by the police thereafter in which they had gathered certain information. We have read those allegations made in the chargesheet against all the appellants herein. Most of the allegations in the aforesaid chargesheet are mainly directed against Accused 1.

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34. The allegations made against the other accused are that Accused 1 diverted huge quantities of paddy to NRI Industries, Ponnur and made it disappear with the active assistance of Accused 2 to Accused 9 and that Accused 1 purchased lands at Nethaji Nagar, Nidubrolu in the name of benamis with the assistance of Accused 6 and that Accused 1 also purchased valuable properties at Bangalore

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with the help of Accused 2. These are the only allegations made against the role of the present appellants, namely, Accused 2 and 3 and Accused 6, 7 and 8.

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35. No specific role is ascribed to any of the aforesaid persons except for stating that the huge quantities of paddy were diverted by Accused 1 and made to disappear with the active assistance of Accused 2 to Accused 9. Without ascribing any specific role to any one of them the aforesaid allegation appears to us to be very bald and vague. Similarly the allegations made against Accused 2 and Accused 3 that they had helped their father in purchasing some property is also very vague as no specific role is ascribed to them.”

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15. On the other hand, Mr. L.K. Borah, learned counsel for the respondent has vehemently opposed the submissions made by the learned Senior Counsel for the petitioner and has submitted that the Trial Court has rightly taken cognizance of offence under Section 420 of the Indian Penal Code, 1860 against the present petitioner after following all the procedures prescribed by law. He submits that before issuing summons to the petitioner in this case, the Trial Court had conducted inquiry under Section 202 of the Code of Criminal Procedure, 1973. As will be evident from the materials on record.

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16. He also submits that the Trial Court took the evidence of other witnesses under Section 202 of the Code of Criminal Procedure, 1973, apart from recording the statement of the respondent under Section 202 of the Code of Criminal Procedure, 1973

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before issuing the processes.

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17. Mr. P.J. Saikia, the learned Senior Counsel for the petitioner has also submitted that the FIR lodged by the respondent on 20.01.2016 pertains to a different incident, and it cannot be linked with the present case, as in that case the accusation were made against one Smti Razina Laskar, who took money in two installments, i.e. Rs. 4,50,000/-(Rupees Four Lakhs Fifty Thousand only)in the first installment and Rs. 3,50,000/(Rupees Three Lakhs Fifty Thousand only) in the second installment from the respondent.

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18. He submits that in the FIR, lodged by the present petitioner on 01.12.2015, there is no accusation against the present respondent of taking money from the present petitioner. Rather from the acknowledgment letter which was given to them by Smti Razina Laskar, which is annexed, along with the affidavitin-opposition filed by the respondent in this case.

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19. It is submitted by the learned counsel for the respondent that bare perusal of the said assurance/guarantee letter would reveal that the money was paid to Smti Razina Laskar by the present petitioner as well as by the present respondent and two others, and no money was received by the respondent.

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20. Mr. L.K. Borah, learned counsel for the respondent also submits that after remanding of the case back to the Court of the

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learned Additional Chief Judicial Magistrate, Kamrup(M), Guwahati, the said Court took cognizance after proper application of mind and after considering the materials on record and therefore, the said order should not be interfered with by this Court in exercise of its power under Section 482 of the Code of Criminal Procedure, 1973.

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21. I have considered the submissions made by the learned counsel for both sides and have gone through the materials on record, including the photocopy of the case record of C.R. Case No. 634^c /2016, which was called for in connection with this case.

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22. On perusal of the case record, it appears that before approaching this Court by filing the instant criminal petition, the petitioner had on an earlier occasion also had approached this Court by filing Criminal Petition No. Criminal Petition No. 07/2017 seeking quashing of the complaint case No. C.R. Case No. 634^c /2016, on that occasion the petitioner had also impugned the order dated 02.08.2016, passed by the learned Additional Chief Judicial Magistrate, Kamrup(M), Guwahati, in C.R. Case No. 634^c /2016, whereby cognizance of offence under Sections 406/420/34 of the Indian Penal Code, 1860 was taken by the said Court against the petitioner and on one another person. By the order dated 03.08.2017, a co-ordinate bench of this Court has set aside the order of taking cognizance on the ground that the Magistrate while taking cognizance has ignored

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the settled law that the cognizance of offence under Sections 406/420 Indian Penal Code,1860 together may not be taken on same set of facts. While setting aside the said order of cognizance, the co-ordinate bench of this Court relegated the matter to the Court of learned Additional Chief Judicial Magistrate with a direction to pass a fresh order after considering the materials on record in accordance with law.

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23. Accordingly, the Trial Court had passed a fresh order dated 21.12.2017 after going through the materials on record. It found prima facie materials against both the accused persons under Sections 420 of the Indian Penal Code,1860 and accordingly, cognizance was taken and summons were issued.

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24. It appears that though the learned Senior Counsel for the petitioner has submitted that no inquiry under Section 202 of the Code of Criminal Procedure, 1973 was conducted in this case. However, from record, it appears that the learned Magistrate before issuing the processes had not only examined the complainant under Section 200 of the Code of Criminal Procedure, 1973 , but also examined 1(one) witness produced by him under Section 202 of the Code of Criminal Procedure, 1973. Further, it appears that the CW-1 has deposed that the money alleged to have been given by the complainant was

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handed over to the accused No. 1, Shashank Shekhar by the present petitioner only. The statement recorded under Section 200 of the Code of Criminal Procedure, 1973 of the respondent as well as in the statement of the witness recorded under Section 202 of the Court of Criminal Procedure, 1973 categorical accusation has been made against the present petitioner regarding demand of money in lieu of providing job to the informant. Categorical accusation has been made against the present petitioner by the respondent Dharma Prakash Shah as well as the witness i.e., CW-1 to the effect that on 9^th June, 2016 both the accused persons named in the complaint, including the present petitioner assured the respondent to give job in the Steel Authority of India (SAIL), and both of them came to receive the money. The witness (C.W.2 Sajal Singh) even stated that the money given to the accused No. 1 was even handed over to the petitioner who after counting the same handed over same to the Shashank Shekhar.

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25. Under the above-mentioned circumstances, this is not a case where no specific role has been attributed against the present petitioner. In the case of “ Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra” reported in “(2021)19 SCC 401” which has been cited by the learned Senior Counsel for the petitioner in support of his submissions, the Apex Court has observed that the power of quashing should be exercised sparingly and with

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circumscription. It has also observed that while examining the FIR/ complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegation made in such a FIR/complaint. In this case, apart from accusation which has been made in the complaint petition, the respondent and the witness, who was examined as C.W.2 have categorically made implicating statement against the present petitioner.

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26. The genuineness or otherwise of the allegations levelled against the petitioner may only be examined during the trial by the Trial Court.

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27. For the reasons stated in the foregoing paragraphs, this Court is of considered opinion that this is not a fit case, where the inherent powers of this Court may be exercised to quash the complaint case and set aside the order of the cognizance taken against the present petitioner by the Trial Court.

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28. This petition is accordingly dismissed.

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29. Send a copy of this judgment to the learned Trial Court.

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JUDGE

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Comparing Assistant

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Crl.Pet. No. 692/2018 Page 13

Chandan Prasad Mahato v. Dharma Prakash Shah

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Chandan Prasad Mahato v. Dharma Prakash Shah

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