Judgment 1. Heard Sri Ashok Kumar Singh learned counsel for the petitioner and Mr. J. Upadhaya, learned A.P.P. for the State. Although opposite party no. 2 has filed Vakalatnama in pursuance of notice served on him, yet none appeared to contest this application at the time of hearing. 2. The petitioner who has been impleaded as one of the accused in complaint case no. 1069C/05 is aggrieved by the order dated 5.12.05 passed therein by Sri R.K. Prasad, Judicial Magistrate, Ara whereby he has taken cognizance against the petitioner and others. 3. According to the complaint in January, 2004 his daughter-in-law fell seriously ill and operation became essential and as sufficient funds were not available, complainants wife went to the accused persons and asked for help as the complainant was not present in the village at that time. It is said that the complainants wife gave her gold ornaments worth about 35-40 thousand in hypothecation and in return obtained Rs. 20,000/- with an interest of 5 per cent and with the help of said amount the operation was performed. It is said that on superannuation of the complainant from the police service on 30.11.2004, he received his retiral benefits and on 14.6.05 he took out Rs. 50,000/- and handed over Rs. 48,000/- to the accused persons and demanded refund of the gold ornaments of his wife which had been kept in hypothecation. However, the accused persons demanded Rs. 17,000/- more as according to them the principal amount with accrued interest had become Rs. 65,000/- whereupon on 26.6.05 the complainant paid the balance amount of Rs. 17,000/- but the ornaments were not returned and eventually a further sum of Rs. 30,000/- was demanded for return of the same. 4. It has been submitted on behalf of the petitioner that he is innocent and he is closely related to the complainant and in times of need he had loaned Rs. 22,000/- to the complainant in good faith on 24.6.02 for which the complainant had given a hand note on which he signed on revenue stamp and when the petitioner demanded return of the loaned amount, complaint petition has been filed with motive to grab the amount loaned out. 22,000/- to the complainant in good faith on 24.6.02 for which the complainant had given a hand note on which he signed on revenue stamp and when the petitioner demanded return of the loaned amount, complaint petition has been filed with motive to grab the amount loaned out. It has further been submitted that it would be apparent from the complaint petition and from the statement of the complainant on SA as also from the hand note issued by the complainant that there is discrepancy in the story that has been mooted for borrowing money and whereas in the complaint petition the money was allegedly borrowed for operation of the daughter-in-law for which gold ornaments were hypothecated, the hand note granted by the complainant speaks otherwise. 5. I have perused the complaint petition, statement of the complainant on SA as also hand note issued by him which is Annexure-2 to the application and on perusal of the same, it appears that the learned Magistrate has not applied his mind to the matter in issue. 6. Accordingly, while setting aside the impugned order taking cognizance, the learned Magistrate is directed to consider the materials available on the record and pass fresh order in accordance with law. 7. Accordingly, this application is allowed and the learned Magistrate is directed to proceed in the light of the observations made above.