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2004 DIGILAW 733 (PAT)

Usha International Ltd. v. State Of Bihar

2004-07-22

NAVIN SINHA

body2004
Judgment 1. Heard learned counsel for the petitioner, learned counsel for the State and the learned counsels appearing for the opposite party Nos. 2, 3 and 4. 2. At this stage it is relevant to record that opposite party No. 2 was erstwhile dealer inducted in the tenanted premises through the company and the opposite party No. 4 is his son. Opposite party No. 3 is the landlord. 3. A complaint case was filed by the petitioner that certain premises were taken by it on lease. The premises were then allowed to be used by the opposite party No. 2, a dealer of the petitioner. According to the complaint, the understanding was that the induction of the opposite party No. 2 in the premises was co terminus with his status as dealer. the tenancy remaining with the company. 4. It appears that the premises were handed over to the landlord-opposite party No. 3 directly. This led to institution of suit Title Suit No. 136/2000, by the petitioner to restrain the dealer from handing over possession to the landlord directly. The prayer for injunction was also refused on 15.1.2000. It is not in controversy that no appeal was preferred against this order. The contention is that possession having been handed over before the order refusing injunction was passed there was no occasion to prefer any appeal. 5. Thereafter the present complaint was instituted on 24.3.2001. Cognizance in the complaint was taken under Sections 448 and 120-B of the Penal Code only by an order dated 17.1.2002. Aggrieved thereby, the petitioner preferred Cr. Revision No. 450/2001. The grievance in the revision application was that based on the averments in the complaint and the evidence led an offender under Sections 409 and 420 of the Penal Code was also made out and refusal to take cognizance thereunder was bad. This revision application was disposed by an order dated 2.4.2002 setting aside the order of cognizance. The Magistrate was directed to make further enquiry according to law. 6. Learned counsel for the opposite party No. 2, the Landlord, submitted that thereafter Title Suit No. 102/2001 has been filed by the petitioner on 17.7.2001 wherein a prayer for restoration and restitution of the premises in question has also been prayed for. The Magistrate was directed to make further enquiry according to law. 6. Learned counsel for the opposite party No. 2, the Landlord, submitted that thereafter Title Suit No. 102/2001 has been filed by the petitioner on 17.7.2001 wherein a prayer for restoration and restitution of the premises in question has also been prayed for. Learned counsel for the opposite party No. 2 submitted that injunction therein has been refused and that no appeal has been preferred therefrom by the petitioner. In view of the fact that the counter-affidavit stated that the injunction had been declined by the trial Court, on query by this Court learned counsel for the petitioner stated that he was not aware of developments in the subsequent Title Suite No. 102 of 2001. 7. Learned counsel for the petitioner submits that in view of the revisional order the Magistrate was not justified in directing fresh evidence to be led de novo in the matter. It is submitted that the learned Magistrate was only entitled to take further evidence if it was considered necessary in the facts of the case keeping in mind the direction in the revisional order. The order of the Magistrate therefore, is contrary to law in so far as it directs de novo inquiry to be conducted by the Magistrate. 8. Learned counsel appearing on behalf of the opposite party placed reliance upon Section 398 of the Code of Criminal Procedure to submit that the matter remains within the discretion and jurisdiction of the Magistrate after the matter is remanded to him as to what would be meaning of the words further inquiry. It was submitted that in the given facts of the case further inquiry would also mean that the Magistrate could proceed to record evidence afresh. 9. Learned counsel appearing on behalf of the opposite party Nos. 2 and 4 adopted the submissions made on behalf of the opposite party No. 3. 10. In the present case, it is not in dispute that the petitioners appear to be primarily aggrieved by the fact that cognizance had been taken against the opposite parties under Sections 448 and 120-B of the Penal Code, which would let them of lightly with punishment and penalty which the petitioner had been considers as being inadequate. 10. In the present case, it is not in dispute that the petitioners appear to be primarily aggrieved by the fact that cognizance had been taken against the opposite parties under Sections 448 and 120-B of the Penal Code, which would let them of lightly with punishment and penalty which the petitioner had been considers as being inadequate. The original allegation by the petitioner being under Sections 409 and 420 of the Penal Code, taking of cognizance for lesser punishment was not acceptable to the petitioner. While considering this aspect it has to be kept in mind that earlier in the Title Suit No. 136/2000 injunction was rejected and no appeal had been preferred. Thereafter fresh Title Suit for restoration and restitution has also been filed by the petitioner wherein also injunction has been declined. 11. At this stage, learned counsel for the petitioner pointed out that no appeal was preferred against the refusal of injunction in Title Suit No. 136/2000 because by then the premises had already been handed over to opposite party No. 3. 12. By reasons of the revisional order the Magistrate is now required to reconsider whether cognizance should be taken against the opposite parties under Sections 409 and 420 of the Penal Code. Punishment under Section 448 of the Penal Code is for one year with fine of Rs. 1000/- only. Punishment provided for under Section 409 of the Penal Code is for imprisonment for a period of ten years with fine. Likewise the punishment provided under Section 420 of the Penal Code is imprisonment for a term upto seven years and fine. It is thus apparent that by reasons of the revisional order the Magistrate was now required to examine the complaint and come to conclusion whether more serious offence under Sections 409 and 420 of the Penal Code would be made out. This would obviously be to the prejudice of a person who is impleaded as opposite party in the complaint case. The Magistrate was now required to proceed to examine the level of allegations than what was originally recorded. 13. In the aforesaid background this Court at this stage does not find any reason to interfere with the order of the Magistrate. The Magistrate was now required to proceed to examine the level of allegations than what was originally recorded. 13. In the aforesaid background this Court at this stage does not find any reason to interfere with the order of the Magistrate. Quite obviously before arriving at a conclusion whether opposite parties were to be charged of the more serious offence under Sections 409 and 422 of the Penal Code, if the Magistrate decides to take further evidence no fault can be found with the same. It is important to take note of the fact here that the revisional Court did not direct the Magistrate while upholding cognizance under Section 448, IPC to make further inquiry with regard to the allegations under Sections 409 and 420, IPC. The entire order has been set aside and the matter has been remanded to the Court below. The effect is that even the cognizance taken under Section 448, IPC has been set aside. 14. In the aforesaid facts and circumstances this Court finds no reason to interfere with the impugned order. This application is accordingly dismissed.