Research › Search › Judgment

Patna High Court · body

2010 DIGILAW 1736 (PAT)

A. K. Das v. State Of Bihar

2010-08-02

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of entire criminal proceeding in complaint case No. 811 of 1996, T.R. No. 63 of 1999 as well as for quashing of an order dated 17.8.1999 passed by Judicial Magistrate, Bhagalpur, whereby the learned Magistrate had taken cognizance of offense under Sections 420, 406, 465. 471 and 120-B of the Indian Penal Code. 2. Short fact of the case is that opposite party No. 2 filed a complaint vide complaint case No. 811 of 1996 disclosing therein that the petitioner had persuaded the complainant to do the contract work in NTPC in the Electrical Wing for the purposes of un-loading and stocking. It was alleged that the complainant started the contract work. Subsequently, accused No. 2. namely, Surendra Choudhary was appointed as contractor and the complainant was requested by this petitioner to function as Sub-Contractor of Accused No. 2. It was further alleged that the petitioner had given assurance that entire payment will be made to the complainant by Accused No. 2. Despite the fact that the complainant executed the contract work in complete satisfaction of the contractor as well as the NTPC, he was never made payment by either of the accused persons, only assurance was given and thereafter, one way or the other the complainant was cheated by the accused persons including the petitioner and as such the complaint petition was filed. After conducting enquiry, by order dated 17.8.1999, the learned Judicial Magistratej took cognizance of offences as mentioned above and directed for summoning the accused persons including the petitioner. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 1.11.2001, while issuing notice to opposite party No. 2, this Court directed that till further orders, further proceeding in com plaint case No. 811 of 1996 (T.R. No. 630 1999) pending in the court of the Chief Judicial Magistrate, Bhagalpur shall remain stayed. Subsequently, on 10.4.2002, the case was admitted for hearing and it was directed that during the pendency of the application, the interim order passed on 1.11.2001, so far as it relates to the petition shall continue and order of stay is still continuing. 4. Subsequently, on 10.4.2002, the case was admitted for hearing and it was directed that during the pendency of the application, the interim order passed on 1.11.2001, so far as it relates to the petition shall continue and order of stay is still continuing. 4. Despite filing of appearance on be half of opposite party No. 2 at the time hearing, none appeared on his behalf. 5. Shri Rakesh Kumar Sinha learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, firstly submits that in the complaint petition, the period of occurrence was mentioned as from 1990 till the date of filing of the complaint petition and though complaint petition was numbered as Complaint case No. 811 of 1996, it appears that same was filed in the month of August, 1991. Learned counsel for the petitioner, while referring to page-15 of the petition, submits that the petitioner himself was appointed in Bajaj Electrical Ltd. in the month of April, 1990. However, in the complaint petition, the complainant, in paragraph-1, had stated that on 15.1.1990, the petitioner had asked the complainant to submit application for appointment as Contractor. It was submitted that this fact itself indicates that the complaint was filed falsely. It was further submitted that for the recovery of amount, which was claimed in the complaint petition, the complainant had also filed a suit vide Money Suit No. 87 of 1996. Learned counsel has referred to Paragraph 13 to the petition. It was further submitted that in the complaint petition the complainant has failed to establish as to bow he was appointed as Sub Contractor. Moreover, whatever claim was made by the complainant was mainly made against the accused No. 2, who was appointed as Contractor and complainant had functioned as Sub Contractor of accused No. 2. On the aforesaid grounds, it has been submitted that there was no material to proceed against the petitioner, but the learned Magistrate, in a mechanical manner, has passed the impugned order dated 17.8.1999. 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor, appearing on behalf of the State, has opposed the prayer of the petitioner. 7. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on record. The Court is of the opinion that on record. there were no sufficient materials to proceed against the petitioner. Smt. Indu Bala Pandey, learned Additional Public Prosecutor, appearing on behalf of the State, has opposed the prayer of the petitioner. 7. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on record. The Court is of the opinion that on record. there were no sufficient materials to proceed against the petitioner. Moreover, after lapse of such a long time, from the date of alleged occurrence, it is also not appropriate to direct the petitioner to participate in the criminal proceeding before the Court below. 8. In view of the facts and circumstances, the Court feels that it is a fit case for exercise of inherent jurisdiction in favour of the petitioner. 9. Accordingly, the order dated 17.8.1999 passed by the Judicial Magistrate, Bhagalpur in complaint case No. C 811 of 1996/T.R. No. 63 of 1999 is hereby set aside and petition stands allowed.