IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35249 of 2007 ECE INDUSTRIES LTD., Elevator Division through its Chief Executive namely P.C. Agrawal, S/o Late Gopal Ram Agrawal, A – 20, Meerut Road, Industsiral Area, P.S. Kotwali, Gaziabad ……… Petitioner Versus 1. STATE OF BIHAR 2. Kumar Nagendra S/o Dr. Kumar Indradeo Proprietor of Kumar Commerical Complex, Besides Apsara Cinema, Exhibition Road, P.S. Kotwali, District Patna. .. Opp. Parties. ----------- 4 21.11.2008 Heard Mr. L.B.Singh, learned counsel for the petitioner, Mr. Jharkhandi Upadhaya, learned A.P.P. for the State and Mrs. Soni Srivastava, learned counsel for O.P. No. 2. The petitioner has prayed for quashing of order dated 14.11.2006 passed in Complaint Case No. 2424(C) of 2006, whereby Sri S.K.Mishra, Learned Judicial Magistrate, 1st Class, Patna, has taken cognizance for offences under sections 420 and 120B I.P.C. and has directed to issue summons against the accused persons including the petitioner. It appears that the bone of contention amongst the parties is the installation of a lift in Kumar Commercial Complex, Exhibition Road, Patna, and whereas the petitioner claim to have installed the lift as per agreement, the complainant – O.P. No. 2 states that the lift has not been installed at yet. Unfortunately these happens to be disputed question of facts which cannot be looked into at this stage and that too in an application under section 482 Cr.P.C. However, there appears some shortcomings in the order - 2 - taking cognizance. At the inquiry under section 202 Cr.P.C. one Indu Bhushan Prasad was produced in Court to figure as CW no. 1 and he after having supported the prosecution case to a Court question replied in paragraph 1 that he had come to give evidence with the complainant who had informed him that his name had been given as one of the witnesses in the list of witnesses and he also explained the subject matter of the compliant and as a matter of fact even handed over a copy of the complaint petition for his perusal. He is also not in a position to say as to which officer of the accused Company lives where and he could not recall to mind as to who was the person whom he had met. Similarly CW 2 Sanjay Kumar, aged 25 years, to a Court question submitted that at the time of the occurrence he was 12 – 13 years old. The occurrence is said to have taken place in the year 1994 and his evidence was recorded on 7.11.2006, that is after 12 years. He claims that at the relevant time the complainant was aged about 30 years and in fact being a neighbour was a friend of his. It is difficult to understand how a 12 year old boy could develop a friendship with a person of 30 years old since it is a matter of two different generations. This witness also states that there had been a written agreement between the parties which had been signed by Choudhary Jee Agrawal Jee but he could not recall to mind which other person had signed on the agreement. He also could not recall to mind as to who the figured as attesting witnesses to the - 3 - agreement. He could not even state as to whether the complainant had signed on the agreement. Apparently from the deposition of the two witnesses they seem to be tutored witnesses coached by the complainant for obtaining wrongful gains for himself and notwithstanding the above shortcomings in the evidence, the learned Magistrate proceeded to take cognizance which apparently was against the weight of evidence in support of the prosecution case. Taking of cognizance on such frivolous evidence adduced by the complainant is unwarranted and cannot be sustained in law. Accordingly the impugned order taking cognizance, due to the shortcomings therein, is hereby set aside and the matter is remitted back to the Court of Sri S.K.Mishra, Judicial Magistrate, 1st Class, Patna or his successor in office to hold further inquiry into the matter before passing orders on the complaint case. With the aforesaid observations the application is allowed and the matter is remitted back to the court below. Spd/- (Abhijit Sinha, J.)