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2010 DIGILAW 671 (PAT)

Vijay Kumar Bohra v. State Of Bihar

2010-04-07

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Two petitioners, while invoking inherent jurisdiction of the this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of order dated 28.2.1998 passed by Judicial Magistrate, 1st Class, Muzaffar- pur in Complaint case No. 1292 (C) of 1997. Tr. No. 1458 of 1998. By the said order, the learned Magistrate has taken cognizance of the offence under Section 406 of the Indian Penal Code. 2. Short facts of the case is that the complainant-opposite party No. 2, who claims to be wholesale dealer of cloths had entrusted cloths for an amount of Rs. 14,873.41 to the petitioners firm in the name and style of M/s Vijay Stores on 5.5.1993 with a condition that within a period of one year from the date of entrust- ment, the petitioners were required to return the sale proceeds or return the cloth. The complaint petition further dis- closed that the payment by petitioners were made up to 11.3.1996 and till that date, a total amount of Rs. 3,739.09 was paid to the complainant. However, on repeated re- quest, rest amount was never returned. Subsequently, tne complainant came to know that the accused persons had dishonestly dis- posed of the cloth in question and thereafter, the complaint petition was filed vide com- plaint case No. 1292 (C) of 1997 in the Court of Chief Judicial Magistrate, Muzaffarpur. 3. Shri S.D. Sanjay, learned counsel for the petitioner, while challenging the order of cognizance, submits that on perusal of the complaint petition, it is evident that there were some business disputes between the parties i.e. petitioners and complainant and the complaint petition does not disclose commission of any offence. He further, by referring to Annexure-2, submits that the receipt shows that the cloths in question were sold to the petitioners by the complainant. By referring to Annexure-2 to the petition, he submits that it cannot be considered as an entrustment of the cloth to the petitioners by the complainant or a criminal breach of trust. He has also referred to other documents, which have been annexed along with the petition and submits that even the annexures show that a bank draft of Rs. 15,000/- was also prepared and paid in the name of complainant. He has also referred to other documents, which have been annexed along with the petition and submits that even the annexures show that a bank draft of Rs. 15,000/- was also prepared and paid in the name of complainant. Shri S.D. Sanjay, whole pursuing this Court to look into the documents, which have been annexed with the present petition, has relied on a decision of Supreme Court reported in 2007(14) SCC 776 (All Kargo Movers (India) Private Limited and others V/s. Dhanesh Badarmal Jain and another). He submits that the Honble Supreme Court has said that the Court is not divested with the power to examine document even at the stage by hearing a petition under Section 482 of the Code of Criminal Procedure. 4. Shri Najmul Hoda, who appears on behalf of opposite party No. 2, has vehemently opposed the prayer of the petitioners. He submits that bare perusal of the complaint petition makes it clear that the petitioners have committed offence under Section 406 of the Indian Penal Code. He further submits that in view of the contract, the sale proceeds or cloth was to be returned within a period of one year from the date of entrust- ment, but since payments were coming from the petitioners, the complainant was of the view that the terms and conditions of the agreement will be truly complied with. However, immediately after coming to know that entrusted property was illegally sold by the petitioners, the complainant filed the present complaint petition. He fur- ther submits that at this initial stage, this Court may not interfere with the order in question. He submits that presently on the basis of the materials available on record, the learned Magistrate has passed order of cognizance and if the petitioners are ag- grieved by the said order, there are other remedies available to the petitioners as per provisions contained in the Code of Criminal Procedure. He further submits that in view of the facts and circumstances of the present case, this Court may not interfere with the matter at this initial stage of the criminal case. Accordingly, he prays for dis- missal of the petition. Shri Hoda has been supported by Shri Sunil Kumar Pandey, who appears on behalf of the State. 5. I have examined the complaint petition as well as the order of cognizance. Accordingly, he prays for dis- missal of the petition. Shri Hoda has been supported by Shri Sunil Kumar Pandey, who appears on behalf of the State. 5. I have examined the complaint petition as well as the order of cognizance. I am of the view that complaint petition discloses commission of the offence and as such there is no error in the order of cog- nizance passed by the learned Magistrate. So far as All Kargo Movers (India) Private Limited, case (supra) is concerned, I am of the view that by the said judgment, the Honble Supreme Court has reiterated the old law. Of Course, this Court is not divested with the power to examine documents, which are to be relied upon at the defence stage by the accused in peculiar facts and cir- cumstances of a case, at the same time, there are some restrictions. Time without number the Honble Supreme Court has held that at the initial, or interlocutory stage " of a criminal case, the superior Court should refrain from interfering. In a case reported in 1995 (3) Cr Law Journal 2935 (G.N. Hegde V/s. S. Bangarappa), the Honble Supreme Court, while reiterating the old law had even admonished the superior Courts from interfering in initial or inter- locutory stage of criminal cases. However, application of law applies in view of the facts and circumstances of a case. In the present case, I am of the view that the complaint case has disclosed the offence committed by the accused persons and as such I do not find any ground to interfere in the present case. 6. Accordingly, the present petition stands rejected. 7. By order dated 25.8.1999, while admitting the present petition for hearing, this Court had directed that further proceedings in Complaint case No. 1292 (C) of 1997, Tr. No. 1458 of 1998 shall remain stayed till disposal of this application. 8. In view of the rejection of this petition, interim order of stay stands automatically vacated. 9. Let a copy of this order be communicated to the Court below forthwith.