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2010 DIGILAW 1813 (PAT)

Ramashish Singh v. State Of Bihar

2010-08-11

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 an order dated 25.6.1999 passed by Sri Chaudhary B.K. Rai, Judicial Magistrate, 1st Class, Nawadah in Complainant Case No. C-161 of 1999/Tr. No. 357 of 2000. By the said order, the learned Magistrate has taken cognizance of offence under Section 420 of the Indian Penal Code. 2. Short fact of the case is that Opp. Party No. 2 filed a complaint in the Court of the learned Chief Judicial Magistrate, Nawadah, which was registered as Complaint Case No. C-161 of 1999/ Tr. No. 357 of 2000, disclosing therein that on 29.10.1999, he had come to Patna for appearing in an examination for the post of Stenographer in the Electricity Department and thereafter the petitioner contacted him and gave an assurance that if he makes payment of Rs. 20,000/- he will arrange employment to the complainant. On assurance given by the petitioner, the complainant took Rs. 20000/- from witness No. 3 and in lieu of Rs. 20,000/- the complainant transferred some piece of land in favour of witness No. 3. It was alleged that despite assurance, an acceptance of Rs. 20,000/- the petitioner did not take any step to provide employment to the petitioner and thereafter repeatedly he only gave assurance for refunding the money. An assurance was also given that the petitioner will refund money with interest, but all assurances went in vain. On the aforesaid allegations, the complaint was filed for offences under Sections 406, 419, 420 and 120-B of the Indian Penal Code. At the enquiry stage, few witnesses were examined, who supported the complainants case and thereafter by the impugned order, the learned Magistrate took cognizance of offence only under Section 420 of the Indian Penal Code. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 17.10.2001, while issuing notice to Opp. Party No. 2, this Court directed that till further order is passed, further proceeding in Complaint Case No. C-161 of 1999/Tr. No. 357 of 2000 pending in the Court of the Judicial Magistrate, 1st Class, Nawadah shall remain stayed. Subsequently, since inspite of service of notice, Opp. On 17.10.2001, while issuing notice to Opp. Party No. 2, this Court directed that till further order is passed, further proceeding in Complaint Case No. C-161 of 1999/Tr. No. 357 of 2000 pending in the Court of the Judicial Magistrate, 1st Class, Nawadah shall remain stayed. Subsequently, since inspite of service of notice, Opp. Party No. 2 did not appear, the present case was admitted for hearing and again notice was order to be issued to Opp. Party No. 2. It was directed that pending hearing of this application, interim order dated 17.10.2001, shall remain operative and order of stay is still continuing. 4. Despite service of notice Opp. Party No. 2 has not preferred to appear either in person or through counsel. 5. Sri Siyaram Shahi, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance as well as initiation of entire proceeding submits that criminal proceeding was initiated in the present case maliciously by the complainant. It was submitted that the complaint petition was liable to be rejected on the ground of delay itself. It was sub- mitted that the complainant himself in complaint petition had admitted that occurrence had taken place on 3.11.1990, whereas the complaint petition was filed on 17.3.1999 i.e. almost after nine years from the alleged date of occurrence. It was further submitted that in complaint petition, the complainant in paragraph 5 had stated that payment of Rs. 20,000/- was made to the petitioner by the complainant at the residential house of the complainant, which is situated in the district of Nalanda. However, in the legal notice, which was sent on behalf of the complainant through an advocate, which is marked as Annexure-2 to the present petition, in paragraph-3 of the said legal notice, it was stated that the payment was made to the petitioner by the complainant at Jhumri Tilaiya. Learned counsel for the petitioner has also sub- mitted that there is contradiction on the point of date of occurrence in between the statement made in the complainant petition as well as the statement made by the complainant on solemn affirmation. It was further submitted that no offence under Section 420 of the Indian Penal Code can be attracted in view of peculiar nature of allegation. It was further submitted that no offence under Section 420 of the Indian Penal Code can be attracted in view of peculiar nature of allegation. It was submitted that the complainant himself had admitted that for the purpose of providing employment to the complainant through back door, money was given to the petitioner by the complainant and, as such, it was submitted that if the payment is made to a person for achieving an illegal and unlawful goal, the provision under Section 420 of the Indian Penal Code cannot be applied. On the aforesaid grounds, it has been prayed to quash the order of cognizance as well as entire proceeding. 6. Sri A.M.P. Mehta, learned Addl. Public Prosecutor appearing on behalf of the State even in absence of Opp. Party No. 2 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. Surprisingly, in the present case while filing the complaint petition, the complainant had not even whispered regarding delay in filing of the complaint petition. Of course, for an offence under Section 420 of the Indian Penal Code, Section 468 of the Code of Criminal Procedure, which deals with the limitation, does not apply, but in peculiar facts and circumstances of the present case, it was expected to assign some reasons. Besides delay, on the basis of fact also, the Court is persuaded to accept the submission of the learned counsel for the petitioner that in the present case, no offence under Section 420 of the Indian Penal Code is made out. Accordingly, this Court is of the opinion that it is a fit case for exercising inherent jurisdiction in favour of the petitioner and, as such, order of cognizance dated 25.6.1999 passed by Sri Chaudhary B.K. Rai, Judicial Magistrate, 1st Class Nawadah in Complaint case No. C-161 of 1999/Tr. No. 357 of 2000 is hereby set aside and the petition stands allowed.