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2007 DIGILAW 732 (PAT)

Shyamnandan Sharma v. State Of Bihar

2007-04-12

MADHAVENDRA SARAN

body2007
Judgment Madhavendra Saran, J. 1. Heard learned counsel for the petitioner and also learned A.P.P. on. behalf of the State. None appears on behalf of opposite party no.2 to argue the matter. 2. In this miscellaneous application prayer has been made for quashing the order of cognizance dated 2.9.1995 passed by learned Sub-divisional Judicial Magistrate, Rosera in Complaint Case No. 357/95 corresponding to T.R. No. 852/95 as well as for quashing the entire prosectuion arising out of said complaint case. 3. It appears that opposite party no.2/ complainant Surendra Prasad Singh on 25.7.1995 filed a complaint in the Court of Additional Chief Judicial Magistrate, Rosera alleging therein that on 25.7.1995 at about 8.00 PM the petitioner along with four others came in the office of Pusa Khadi Bhandar and on the point of revolver got some endorsement made in the old blank receipts and new vouchers and further obtained his signature on blank piece of papers as well as on the plain application and also took away some papers from his personal file. The complainant thus expressed his apprehension that the accused persons were making some conspiracy against him. 4. It appears that the complainant was examined on solemn affirmation and during inquiry under Sec.202 of the Code of Criminal Procedure (in short as the Code) two witnesses named Ashok Kumar Singh and Ajay Kumar Singh were examined and the learned Magistrate after being satisfied that there was sufficient materials for proceeding further against accused persons took cognizance and directed for issuance of summons against them. Against the said order of cognizance the petitioner has preferred the present application for quashing before this Court. 5. Submission of learned counsel is that the petitioner has not been named by two inquiry witnesses during their statement recorded under Sec.202 of the Code. His further submission is that the complainant was put under suspension by the petitioner with effect from 7.6.1995 for defalcation of huge amount to the tune of Rs. 18,000.00 of Samastipur Anumandaliya khad Gramodyog Samiti and he was asked to show cause within 15 days as to why he may not be dismissed for criminal misappropriation and criminal breach of trust in respect of huge amount of money committed by him as an Assistant Manager in the books of account. In this connection he referred to Annexure-2 dated 5.6.1995 to substantiate his contention. In this connection he referred to Annexure-2 dated 5.6.1995 to substantiate his contention. Further submission is that after being put under suspension the petitioner vide Annexure-3 dated 18.7.1995 directed Sri Jiwachh Ishwar to lodge F.I.R. against the complainant and accordingly Rosera P.S. Case No. 119/95 dated 28.7.1995 under Sections 420 and 409 of the Penal Code was registered against the complainant. Learned counsel pointed out that after, Annexure-3 dated 18.7.1995 the complainant with a view to raise his defence lodged this present complaint case in the Court of Additional Chief Judicial Magistrate, Rosera on 25.7.1995. He also pointed out that the present complaint case has been filed by the complainant to screen himself from the crime committed by him and to put pressure upon the petitioner not to pursue the police case. Learned A.P.P., on the other hand, supported the impugned order. 6. It appears that at the relevant time the petitioner was Mantri of Samastipur Anumandaliya Khadi Gramudyog Samiti. It appears from Annexure-2 as mentioned above that the complainant was put under suspension with effect from 7.6.1995 for defalcation of amount to the tune of Rs. 18,000.00 of Samastipur Anumandaliya Khadi Gramudyog, (Rosera Centre) and he was asked to furnish show cause within 15 days as to why he may not be removed from service. Then it appears that vide Annexure-3 the petitioner authorised Shri Jiwachh Ishwar who is also one of the accused in the present complaint case to lodge First Information Report against the complainant and accordingly the same was lodged as Rosera P.S. Case No. 119/95 under Sections 420 and 409 of the Penal Code. The present complaint case was filed in the Court of learned Magistrate at Rosera on 25.7.1995. As submitted by the petitioners counsel the two inquiry witnesses have not named the petitioner. 7. I find substance that the present complaint case has been filed by the complainant with a view to save himself from the allegations on the basis of which he was put under suspension. In the aforesaid situation the continuation of the present criminal case would be an abuse of the process of the Court. 8. This application is accordingly allowed and the impugned order of cognizance as against the petitioner is hereby quashed.