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2007 DIGILAW 1789 (PAT)

Mahesh Prasad v. State Of Bihar

2007-11-21

ABHIJIT SINHA

body2007
Judgment 1. Heard Sri Mahesh Prasad, Advocate, the petitioner in person and Sri Jharkhandi Upadhyay, the learned A.P.P. for the State. Md. Parwez Akhtar, the complainant, impleaded as O.P. No. 2 herein, had initially appeared in this case by filing vakalatnama but ever since order dated 2.7.2007 directing him to be physically present in Court, both he and his counsel have become conspicuous by their absence in Court. Accordingly vide order dated 5.9.2007 fresh notices by both processes were directed to be issued to him and were in fact issued on 10.9.2007 but as the notice sent by registered post has not been returned unserved notwithstanding the passage of over two months it will be presumed under the provisions of the Civil Procedure Code to have been validly served. Today again there is no appearance either by O.P. No. 2 or by his accredited counsel. 2. Through this application the petitioner seeks the quashing of order dated 23.2.2004 passed by Sri Man Mohan Sharan Lal, Judicial Magistrate, 1st Class, Jehanabad in Complaint Case No. 220 of 2003 whereby cognizance for offences under Ss. 420 and 406 of the Indian Penal Code has been taken. 3. It appears that O.P. No. 2 herein filed the aforesaid complaint case on 21.4.2003 inter alia stating that he carries on business of selling Sevai which for the past two months he had been purchasing in cash from the accused persons having a Sevai Manufacturing Unit in the house of accused nos. 1 to 3 in Buddha Colony, Patna and that he sold the Sevai at different places. It is further stated that on 6.11.2002 the complainant received a telephonic call from accused no.3, informing him that 500 cartoons of Sewai would be given to him at a cheaper rate if he could advance the price as she was in an urgent need of money in absence whereof the manufacturing unit would have to be closed. It was also given out that on the following day (7.11.2002) either her husband or her son would meet him and he should make an arrangement for the money. It is alleged that on 7.11.2002, the complainant took out Rs. It was also given out that on the following day (7.11.2002) either her husband or her son would meet him and he should make an arrangement for the money. It is alleged that on 7.11.2002, the complainant took out Rs. 70,000.00 from the Bank and handed over the same to the petitioner in the presence of his son, Pawan Kumar, at around 5.30 in the evening in his house and in token of such receipt of money the petitioner is said to have handed over a receipt of the cash memo of his firm. It is also alleged that notwithstanding the money being advanced the accused persons neither supplied the promised Sewai nor returned the entire money except for Rs. 5000.00 which was paid in the month of February, 2003. 4. It has been submitted on behalf of the petitioner that he alongwith his wife, son and witness, Gopal Sharan, have been falsely implicated in this case which has been filed as a counter blast to the complaint case filed by him on 29.3.2003 bearing no. 625(C) of 2003 against the O.P. No. 2 and his relatives only with a view to coerce him into meek submission. It has also been submitted that after taking of cognizance OP. No. 2 and the other accused failed to appear in Court as a consequence whereof non-bailable warrant had been issued against the accused persons. It has also been submitted that the said complaint petition had been filed since the complainant had not paid Rs. 1,29,000.00 to the petitioner after taking Sewai from him and he was not ready to return the same and instead had been advancing threats to implicate him in false cases. The further submission advanced by the learned counsel for the petitioner is that through the complaint petition giving rise to the instant case, the complainant appears to be aggrieved by the allegedly non-return of the money allegedly said to have been advanced to the petitioner and the same could not give rise to any criminal liability as the same was a civil dispute for which remedy did not lie in a criminal proceeding. 5. Since O.P. No. 2 has not appeared, the submission advanced by the learned counsel remains unrebutted. 6. Even otherwise from the allegations made in the complaint petition, no offence under Ss. 5. Since O.P. No. 2 has not appeared, the submission advanced by the learned counsel remains unrebutted. 6. Even otherwise from the allegations made in the complaint petition, no offence under Ss. 406 and 420 of the Indian Penal Code can be said to have been made out against the petitioner. Admittedly, there is no entrustment of any money to the petitioner rather the said money was paid to the petitioner in advance by way of price of Sewai which was to be supplied and as soon as money is paid in advance as a price of some commodity it becomes the property of the petitioner and the complainant looses ownership of the said property (money). As such no offence u/s. 406 of the Indian Penal Code can be said to have been made out. Similarly, there had been no misrepresentation nor false inducement to the complainant and as such even an offence u/s. 420 of the Indian Penal Code can be said to have been made out. 7. Due regard being had to the facts and the circumstances of the case, the prosecution of the petitioner appears to be an abuse of the process of the Court. Accordingly, the impugned order taking cognizance, so far as the petitioner is concerned, not being sustainable in law is hereby quashed and the application is allowed.