Research › Search › Judgment

Patna High Court · body

2009 DIGILAW 661 (PAT)

Shamshad Ahmad v. State Of Bihar

2009-04-21

SAMARENDRA PRATAP SINGH

body2009
JUDGEMENT Samarendra Pratap Singh, J. 1. Heard the learned Counsel for the parties. 2. The petitioner has moved this Court against the order dated 14.3.2007 passed by Judicial Magistrate, Ist Class, Muzaffarpur, in Complaint Case No. 2928/05/Tr. No. 1523 of 2007 whereby the learned Magistrate has refused to dispense with personal appearance of the petitioner under Section 205 of the Cr.P.C. by rejecting his application filed for the same on 23.12.2006. 3. The complainant prepares tanned raw leather. The petitioner deals in manufacturing various leather items after purchasing raw leather. 4. The petitioner approached the complainant through M/S Sierra Trading Private Ltd. for supply of the raw leather. Pursuant to one oral agreement, the complainant delivered a consignment of goods valuing Rs. 48,854/- vide Bill No. ALI/STP/14 dated 3.10.2002 which was duly paid vide D.D. No. 276415 dated 18.11.2002. In between the period of 30.10.2002 to 31.03.2003 the complainant supplied raw leather worth Rs. 33,57.199/- to the petitioner against which, the petitioner made payment of Rs. 27,96,354/- only. The balance sum of Rs. 5,60,845/- remained due with the petitioner. 5. The petitioner had issued a declaration in the prescribed Form C No. TN/BO 1851 dated 19.1.2004, which also confirms the receipt of entire consignments sent by the complainant to the petitioner in the year 2003 - 2004. Similarly some more amount remained unpaid, as against goods received. 6. After due enquiry, the court took cognizance of offences under Sections 420, 406 of I.P.C. I.P.C. and issued summons at the first instance. As the accused failed to appear, bailable and non-bailable warrant of arrest were issued against him. The petitioner thereafter filed an application under Section 205 of Cr.P.C. before the learned Magistrate on 23.12.06. 7. Learned Magistrate rejected the application on the ground that the accused is a defaulter and he is an accused in serious case. 8. The petitioner submits that he has nothing to do with the aforesaid company, namely, M/s Sierra Trading Pvt. Ltd. In other words he has denied the factum of approaching the complainant on behalf of the aforesaid company. 9. The accused-petitioner also gave an undertaking that he would physically present himself as and when required by the trial court, particularly at the stage of framing of charge and recording of statement under Section 313 of Cr.P.C., He further submits that the petitioner had filed a quashing application being Cr. Misc. 9. The accused-petitioner also gave an undertaking that he would physically present himself as and when required by the trial court, particularly at the stage of framing of charge and recording of statement under Section 313 of Cr.P.C., He further submits that the petitioner had filed a quashing application being Cr. Misc. 1745/07, before this Court against the order taking cognizance which was dismissed. Thereafter he had filed S.L.P. before the Hon ble apex court in which notice has been issued and further proceeding in the complaint against the accused -petitioner has been stayed. 10. Learned Counsel for the O.P.s submits that as the petitioner hails from Muzaffarpur and started his business from there he may not be allowed benefit of Section 205 of Cr.P.C. The complainant alleges that petitioner has committed huge defalcation and misappropriation. 11. It appears from perusal of the impugned order that the Magistrate has not considered the application under Section 205 of Cr.P.C. in its right perspective. The Magistrate has simply stated that in grave cases, exemption under Section 205 of Cr.P.C. ought not to be granted. The Magistrate ought to have discussed the contentions of both the sides, instead of rejecting the application by merely stating that the offence is a grave one. 12. In view of the aforesaid aspects, the impugned order dated 14.3.2007 passed by the Magistrate is set aside. The matter is remitted back to the learned Magistrate for fresh consideration. 13. However, it is made clear that this Court has not expressed any opinion on the merit of the case. 14. With the aforesaid observation this revision application is allowed to the extent mentioned above.