IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11915 of 2006 ABINASH SINHA @ AVINASH KUMAR SINHA Versus THE STATE OF BIHAR & ANR ----------- 4 31.7.2008 Heard learned counsel for the petitioner who is one of the accused named in the complaint petition as also learned A.P.P. and the learned counsel for O.P.No. 2. The petitioner is aggrieved by order dated 28.8.2000, whereby cognizance has been taken against him and another by Judicial Magistrate, 1st Class, Munger, in Complaint Case No. 828(C) of 1999. It appears that one Shyam Sharan, impleaded herein as O.P. No. 2, filed the aforesaid complaint inter alia alleging that the petitioner who was agent of one Jitendra Spra, the proprietor of Crystal Shoe Polish, New Delhi, along with him and accused no. 3, Animesh Choudhary, fraudulently induced the complainant into starting a business with them and on the assurances given a draft for Rs. 19,940/- in favour of the Company payable at New Delhi was handed over to the accused persons and as a sign of goodwill and to prove their bona fide goods worth Rs. 9,500/- were sent to the complainant which on being opened were found to be useless and of no use. The submissions made on behalf of the petitioner is that he was merely the stockiest of Crystal Shoe Polish at Patna and was in no way concerned with the financial affairs or otherwise of the Company. In support of his submission he sought to refer to - 2 - Annexure 2 which happens to be the deed of agreement entered into between the petitioner and accused no. 1 which in specific terms spells out the terms and conditions of the agreement . Unfortunately Annexure 2 happens to be the defence of the petitioner which cannot be looked into at this stage in a proceeding under section 482 Cr.P.C. . It is apparent from the recital of the complaint petition itself that it were all the three accused who conjointly had induced the complainant into entering into an agreement with them and to part with a sum of Rs. 19,940/-, and further, to prove their bona fide they sent a consignment worth Rs. 9,500/- which eventually turned out to be useless and of no use. This specifically discloses the presence of mens rea or intention of cheating which admittedly is one of the ingredients for making out an offence under section 420 I.P.C. In view of the discussions made above I find no merit in this application which is dismissed. However, the petitioner shall be at liberty to raise all these issues at the time of framing of charge. Spd/- (Abhijit Sinha, J.)