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2013 DIGILAW 482 (JHR)

Gopi Krishna Dey @ Gopi Dey v. State of Jharkhand

2013-04-10

R.R.PRASAD

body2013
ORDER I.A. No. 1373 of 2013 Learned counsel appearing for the petitioner submits that he is not pressing this interlocutory application. 2. Accordingly, this interlocutory application is dismissed as not pressed. Cr.M.P. No. 1229 of 2002 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for O.P. No. 2. 4. This application is directed against the order dated 17/12/1998, passed by the then S.D.J. M., Sahebganj in P.C.R. Case No. 185/1998 (T.R. No. 298/2002), whereby and whereunder cognizance of the offences punishable under Sections 420, 406 and 407 of the Indian Penal Code has been taken against the petitioner. 5. It is the case of the complainant that the petitioner was working as an agent in a manufacturing Firm known as M/s Bihari Lal Bhartia. The petitioner was entrusted with the job to secure orders from different customers and to supply the materials of the Firm. It has been alleged that in between 03/07/1997 to 18/11/1997, the accusedpetitioner lifted goods from the Firm against the order collected from different customers but he did not deposit the payment, which he had received against the supply of goods from different customers. On such allegation, P.C.R. Case No. 185/1998 was registered under Sections 420, 406 and 407 of the Indian Penal Code. Subsequently, the Court, vide its order dated 17/12/1998, took cognizance of the offence punishable under Sections 420, 406 and 407 of the Indian Penal Code against the petitioner. 6. Mr. Roy, learned counsel appearing for the petitioner submits that accepting the entire allegations to be true, no case of cheating or criminal breach of trust is made out as the petitioner cannot be said to have committed offence of cheating as no ingredients are there for commission of the offence either under Section 420 or Section 406 of the Indian Penal Code and, at the same time, ingredients also never seems to be there for constituting offence under Section 407 of the Indian Penal Code and, thereby, the Court has committed illegality in taking cognizance of the offence against the petitioner. 7. 7. As against this, learned counsel appearing for O.P. No. 2 submits that though the offence may not be attracted in the face of the allegations under Sections 420, 406 and 407 of the Indian Penal Code, but the allegations made in the complaint do constitute offence under Section 409 of the Indian Penal Code and, thereby, entire proceedings never warrants to be quashed. 8. Having heard learned counsel appearing for the parties, it appears on the face of the allegations, upon which complaint case has been instituted, that no offence is made out under Sections 420, 406 and 407 of the Indian Penal Code and, thereby, the order dated 17/12/1998, taking cognizance, is hereby quashed. 9. However, since the allegation made in the complaint as per the complainant, does constitute offence under the Indian Penal Code, the matter is remanded back to the Court below for passing a fresh order on the point of cognizance. 10. At the same time, a plea has also been taken that nonbailable warrant of arrest has been issued against the petitioner pursuant to order passed by the Court below on 08/03/2000 though no summon has ever been served upon the petitioner after cognizance of the offence has been taken against him. 11. If, it is found by the Court that without there being any service of summon, warrant of arrest has been issued, the petitioner when will put his appearance, will be allowed to remain on the previous bail but, if, it is other wise then the petitioner needs to take recourse of the law.