Criminal Miscellaneous No.32288 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure 1. MANORAMA SINGH @ MANORAMA DEVI , W/O Binay Kumar Singh 2. Gayatri Devi, W/O Late Awadhesh Kumar Singh, Both residents of Mohalla Lal Darwaja, P.S. Kotwali, District-Munger ------------------ Petitioners Versus 1. THE STATE OF BIHAR 2. Vijay Krishna Prasad @ Lallu Babu, Son of Late Parmeshwar Prasad Verma, resident of Lal Darwaza, P.S. Kotwali ,District- Munger ----------------- Opp.Parties. ----------- For the petitioners: S/Sri C.S. Sharma & Umesh Kumar Verma, Advocates For the State: Smt. Indu Bala Pandey, A.P.P. ---------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 4.2.1999 passed by the learned Sub Divisional Judicial Magistrate, Munger, in Complaint Case No.574C of 1998. By the said order, the learned Magistrate has taken cognizance of offence under Sections 420 and 406 of the Indian Penal Code and directed for issuance of summons for securing attendance of the accused persons. 2. Short fact of the case is that Opp.Party no.2 flied a complaint vide Complaint Case No.574 C of 1998 2 disclosing therein that both the petitioners representing themselves to be the Senior Officers of the JVG Finance Finance Ltd. ( hereinafter referred to as “ the Company”) persuaded the petitioners to deposit money in the account of the said Company and, as such, the complainant firstly deposited Rs.51,000/- vide Receipt No.2710 dated 30.5.1997. The complainant also deposited Rs.330/- in the recurring deposit Account with the said Company. It was alleged in the complaint petition that even after expiry of the period of maturity, nothing was refunded to the complainant despite his rigors persuasion to the petitioners. Accordingly, the aforesaid complaint petition was filed and after filing the complaint petition, the complainant was examined on S.A. and one witness supported the complainant during the enquiry of the case. After conducting enquiry, the learned Sub Divisional Judicial Magistrate, Munger vide its order dated 4.2.1999 took cognizance of the offences as mentioned above. 3. Aggrieved with the order of cognizance, both the petitioners approached this Court by filing the present petition. This petition was admitted on 6.3.2000. At the time of admission, this Court had directed for issuance of notice to Opp.Party no.2 and it was further directed that pending disposal, further proceeding in Complaint Case No.574C of 1998 pending in the court of Sri Murlidhar, Judicial Magistrate, 1st Class, Munger , shall remain stayed. The order of stay is still continuing. 3 4. In this case, despite issuance and service of notice, none has come forward at the time of hearing of this petition to support the stand of Opp.Party no.2. 5. Sri Umesh Kumar Verma, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, submits that the petitioners were also made victim by the management of the Company. It was submitted that petitioner no.1 was, for the time being, appointed as Branch Manager in the said Company and representing the Company he had collected deposits through agents. There was no intention of the petitioners either to cheat or misappropriate the deposited amounts. So far petitioner no.2 is concerned, it was submitted that he was the owner of the house, where the Branch Office of JVG Securities Ltd. was being run and only on the ground of being owner of the house, she has been made accused in the present case, otherwise petitioner no.2 has not done anything on behalf of the J.V.G. Securities Ltd. It was further submitted by the learned counsel for the petitioners, while referring to Annexure-1 series to the petition, that the complainant himself has produced the money receipt, which shows that money was deposited by the complainant in favour of J.V.G. Securities Ltd. The petitioner no.1 only in the capacity of Branch Manager had collected and transmitted the deposited amount to the Account of the said Company. He further submits that since the Company had incurred heavy loss , it was not in a position to refund the 4 money to its creditors and thereafter a liquidation proceeding was initiated by Delhi High Court, which was registered as Company Petition Nos. 267/98 and 887/93 and by order dated 5.6.1998, Delhi High Court has appointed Official Liquidator. Learned counsel for the petitioners has referred to paragraph 14 of the petition, wherein it has been stated that as per direction of the Dy. Secretary, Company Affairs, Govt. of India communicated to the official liquidator, High Court, Patna by Fax dated 9.6.1998, the Official Liquidator, Patna High Court requested all the District Magistrates of Bihar vide letter dated 12.6.1998 to take possession of all the assets and properties of JVG Finance Company Ltd, J.V.G. Leasing Ltd and J.V.G. Securities Limited in view of the order passed by Delhi High Court. It was argued that since the entire assets and properties of J.V.G. was attached in the liquidation proceeding as per order of Delhi High Court, it appears that money deposited by the complainant could not be refunded in view of the facts and circumstances as indicated above. It has been argued by the learned counsel for the petitioners that right from the very beginning, there was no material on record to show that the petitioners had ever intended to cheat the complainant or there was any element to construe that the petitioners had committed offence of criminal breach of trust and, as such, neither Section 420 nor Section 406 of the Indian Penal Code is made out against the petitioners. Accordingly, he has prayed for quashing 5 of the order of cognizance. 6. In this case, despite issuance and service of notice, this Court has got no assistance on behalf of Opp.Party no.2. However, Smt. Indu Bala Pandey, learned counsel appearing on behalf of the State has opposed the prayer of the petitioners and submits that the Company had cheated several people of the country and, as such, it is not advisable to interfere with the order of cognizance and it has been submitted to reject the present petition. 7. Besides hearing the learned counsel for the petitioner as well as learned counsel for the State, I have also examined the materials available on the record .In view of the facts and circumstances as indicated above, particularly the fact that with a bona fide belief in the capacity of the Branch Manager of the J.V.G. Securities Ltd. , the petitioner no.1 had accepted the deposit made by the complainant on behalf of the Company and receipt also shows that the deposit was made in the account of the said Company and not in the personal account of the petitioners, the petitioners cannot be held responsible. 8. I am of the considered opinion particularly in view of the fact of initiation of liquidation proceeding even prior to filing of the present complaint petition, which was filed on 31.10.1998, it would not be appropriate to allow the criminal prosecution in the present case against both the petitioners in absence of any element of intention to commit the offence of 6 cheating or criminal breach of trust it would not be appropriate to allow further proceeding pursuant to the order dated 4.2.1999, i.e. order of cognizance and, as such, with a view to prevent abuse of the process of the court, it is desirable to interfere at this initial stage of cognizance and, accordingly, order of cognizance is set aside. 9. The petition stands allowed. Patna High Court,Patna Dated : the 18th Mary,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar,J)