HIGH COURT OF CHHATTISGARH AT BILASPUR AppUcaats Cr. M.P. No. 270 OF 2008 1) Nafhuraai Soni, S/o late Ramchaadra Soni, aged about 49 years< 2) Preinkitaiar Soni, S/o late Rainchsuidra Soni, aged about 44 years. 3) Smt, Geeta Devi, widow of late Ramchanra Soni, aged about 69 years 4) Ravishanker Pursetihi S/o Mohaa Lal Pursefh, aged about 55 years, Applicants 1 & 2 are residents of Beladula Boirdadar, Raj^arh, appUcaat N0. 3 arc residents of Sattigudi Chowk, Baikunthpur, Raigarh, Tahsil aad District Raigarh (C.G.). Applicaats No. 4 R/o Boudadar Raj^arh Tahsil and Distt Raigarh (C.G.). Resooadeats VBRSUS 1) 2) 3) 4) Subhash Bansal, S/o Chliabilchaad Bansal, Occupation Busiaess, Resident of Plaat Road, Rourkela (Orissa) C/o Power of attoniey Dinesh Kmnar Agrawal, S/o Goviad Ram, aged about 35 years, Occupation Busmess R/o m front ofTown hall, Tahsil and District Ra^arh (C.G.). Rajendra Siagh Thakur, S/o Laxman Singh Thakur^ aged about 50 years^ Occupation Busiaess R/o Naya Gaaj, Raigarh(C.G.). Daulateam Sahu, S/o Bherav Prasad Sahu, aged about 48 years, Occupation Busiaess, R/o Darogapara, Raigarh (C.G.). Satyadeo Mishra, S/o Jagbaadhu Mishra, Occupation Business, R/o ViUage and Tahsil Gharghora, Distdct Raigarh (C.G.). APPLICATION UNDBR SBCTION 482 OF THB CODB OF CRIMINAL PROCBDURE. (8B :Hon*ble Mr. T.P.Skarma, J.) Present: Ms. Hamida Siddiqui, Advocate for the applicants. Shri Y.C. Shanna, Advocate for the respondent No. 1. Shri Amit Sharma, Advocate for the respondent No. 3. Shri Manoj Kumar Sinha, Advocate for the reQpondent N0. 4. None for the respondent N0. 2. ORAL-ORDBR (Passed on 14/12/2009) 1, This petition under Section 482 offhe Code ofCrimiaal Procedurc, 1973 (ia short 'fhe Code3) for qushment offhe order dated 12/3/08 passed by 3rd Additional Sessions Judge (F,T.C.) Raigarh ia cnminal revision N0, 181/07 affirmiag titie order takmg cognizaiice dated 23/11/07 passed by fhe Chief Judicial Magistrate, Raigarh ia criiniaal coinplaiat case No. 1840/07. 2, Quashment is prayed on fhe ground ftiat wifhout any priina facie material for takuig cognizaace leamed Chief Judicial Magistrate has taken fhe cognizaiice of fhe ofifence aad fhereby committed aa illegality which has been affimied by the revisional Court aad contiauance ofsuch orderwould amount to abuse offhe process offhe Court. 3, Learaed counsel for fhe pardes are heard. 4, Brief facts necessary for disposal of fhis petition is accoixiiag to tiie case of respondent No. 1 offence of cheating has been coinmitted by the petitioners agamst one Kaixial Baasal, after death of Kamal Bansal property was succeeded by respondent N0. 1 as a brofher aad has filed crimmal complaiat through his general power of attomey holder Dinesh Kiimar Agrawal, after examining the Diaesh Kumar Agrawal Court below has taken the cognizaiice of the offence aad has issued fhe process agaiast fhe petitioners which is under chaUenged, 5. Learaed counsel for fhe petitioners submits tihat power ofattoraey holder is competent to file fhe complamt but he caanot depose for his master, He may state fhe facts which is wifhm his personal kaowledge but his statement reveal that he has stated fhe facts which were not ia his personal knowledge ftierefore, m absence of exaniiaation of ofher witaesses relating to fhie facts fhe order taking cognizaace by Chief Judicial Magistrate, Ra^arh is not sustainable under the law. .^"^^ ^ -J' "51 Leamed counsel for fhe rcspondent No. 1 frankly admits that fhe coinplaiaant was required to exaimne certaia xnore witnesses and fhe coinplabiaat wish to examuie ofher witaesses of fhe facts. On due consideration the copy of the orders aad documents ffled on behatf of the petiUoners it rcveal fhat at fhe time of taking cognizaace leamed Chief Judicial Magistrate, Raigarh was not haviag sufficient material for takiag cognizaace but this is not a case of no evidence^ m fhese circunistaaces order taking cognizaace on fhe basis ofia sufficient niaterial is not sustauaable under fhe law. ConsequenUy, order im.pugiied aad order takmg cognizance dated 23/11/07 passed by Chief Judicial Magistrate, Raigarh are hereby set aside. Case is remitted back to fhe Court of Chief Judicial Magistrate, Raigarh. Chief Judicial Mg^istiate, Raigarh shall further iaquity iato fhe complaiat aad to pass appropriate order. Sd/- T.P. Sharma Judge