IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43168 of 2007 MD.SAMSUDDIN KHAN, SON OF MANNAN KHAN, RESIDENT OF UPTHU BAZAR, POLICE STATION-NAWADA TOWN, DISTRICT- NAWADA……………………………………………………...PETITIONER. Versus 1. THE STATE OF BIHAR. 2. ABID HUSSAIN, SON OF LATE MD. HUSSAIN, RESIDENT OF VILLAGE-BADI DARGAHA NAWADA, POLICE STATION AND DISTRICT NAWADA. …………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mrs. Anjana Prakash, Senior Advocate and Mr. Shivendra Kumar Sinha, Advocate. For the State : Dr. Mayanand Jha, A.P.P. For O.P. No.2 : None. ----------- O R D E R 3. 13.1.2009. This application at the instance of one of the accused of Nawadah(Town) P.S. Case No.295 of 2001 is for the quashing of the order dated 5.4.2003 passed therein by the learned Sub Divisional Judicial Magistrate, Nawadah, whereby he took cognizance under Sections 406, 420, 120-B I.P.C. against the petitioner and two others. The prosecution case is based on the complaint case no.866 of 2001 preferred by one Aslam Khan which on being sent to the police station under Section 156(3) Cr.P.C. the instant police case was registered. According to the complainant/informant, impleaded herein as O.P. No.2, he was the owner of a truck bearing registration no.BER-6087 which was utilized as a “Private Carrier” and the driver thereof for a long period was the petitioner. It is said that by reason of the informant suffering from - 2 - cancer he had to stay away for long periods in connection with the treatment and as a result thereof he had to entail huge financial losses over the truck. It is alleged that taking advantage of the fluid situation the petitioner put forth a lucrative proposal whereunder his father-in-law, Md. Shakil Khan, a person of reasonable means, would take the said truck on hire/rent and in lieu thereof would pay a sum of Rs.7900/- per month to the informant and his son, Md. Shabbir and the terms and conditions where incorporated in the agreement deed executed before a Notary Public. It is said that initially the promised sum was being paid on a regular basis but gradually became irregular and finally was stopped and even the truck became traceless. All efforts for recovery of the truck and the outstanding dues proved absolutely unsuccessful. Assailing the impugned order it was sought to be impressed that the petitioner had never entered into any contract with the informant who taking undue advantage of his signature as an attesting witness on the agreement deed had falsely impleaded the petitioner. While denying the informant’s story as propounded, it was further submitted that he had not approached the court with clean hands and had suppressed material facts in asmuch as the informant had in fact executed a Power of Attorney in favour of his brother-in-law, Abid Hussain, in respect of the truck and the same was reflected in the order dated 30.4.2002 of the Chief Judicial Magistrate, Nawada, releasing the truck seized by the police in favour of Abid Hussain on the basis of the Power of Attorney. It was finally submitted that even if the story, as propounded by the informant was to be accepted at its face value, the entire episode would at best give rise to a - 3 - civil litigation and no criminal liability could be fastened on the petitioner moreso when the ingredients constituting offences under Sections 406, 420 and 120-B I.P.C. were not made out. The informant ought to have sought his remedy by way of a civil litigation. The informant was duly noticed and he even appeared through vakalatnama but at the time of hearing of the case at the admission stage neither the informant nor his accredited counsel was present. He had not even cared to file a show cause as was required of him by the notice issued. As such the submissions of the learned counsel for the petitioner remained unrebutted. Admittedly, the entire claim of the informant is based on the purported agreement said to have been entered into by the informant with Md. Shakil Khan wherein the petitioner had no role to play save and except his having mooted the proposal of his father-in-law taking the truck on hire/rent and figuring as an attesting witness in the agreement deed. He could in no way be made liable for the non-payment of the outstanding dues nor for the missing of the truck more so when there is no assertion that the petitioner continued as the driver of the truck even after it had been taken over by Shakil Khan. For the reasons stated above, the prosecution of the petitioner would amount to an abuse of the process of the court. Accordingly, the impugned order, so far as the petitioner is concerned, is quashed and the application is allowed. P.S. (Abhijit Sinha,J)