IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.48 of 2010 KAMAL KISHORE SINGH Versus STATE OF BIHAR & ANR ----------- 2. 05.07.2010 This is an application for leave to appeal against the judgment dated 20th April 2010 of the learned Judicial Magistrate, 1st Class, Patna City as passed in Complaint Case No. 184(c) of 2004, Tr.No. 873 of 2010 whereby the O.P.Nos. 2 to 4 have been acquitted of the charges under Sections 406, 323, 504 and 379 of the Indian Penal Code. The complainant’s case was that on 28th March 2003, he had kept 339 bags of potato for preserving in the O.P’s cold storage. It was further stated that the potato was worth Rs.60,000/- (sixty thousand). It was alleged that on 11th March 2004 at 12 noon, when the petitioner went to claim delivery of his potato, it was not given to him and that on his insistence for delivery, he was abused, assaulted with fists and slaps and P.W.No.4 Raghavendra Prasad snatched his HMT watch. The complainant named two witnesses as eye witness in the complaint petition. The complainant, including himself, examined three witnesses during trial. The learned trial court has considered that the complainant did not examine the two witnesses whom he had named in the complaint petition as eye witnesses and that in their place, he examined two other witnesses. No reason was assigned for non- examination of those witnesses. Therefore, the learned trial court rightly drew adverse inference against the case of complainant. 2 During hearing, a controversy arose when the O.Ps. claimed that the complainant had to take delivery of potato till 31st October as per the rules and, if the delivery was not taken by that time, the cold storage was entitled to sell the potato and may adjust its rental in the sale proceeds. It was considered by the trial court at Para-13 of the judgment that even the P.W.2 examined by the complainant has stated at Para-15 of his evidence that had the complainant been paid Rs.42,472/- after adjustment of its rental to the complainant, the complainant would not have filed his case. Considering this statement of P.W.2, the learned trial court considered that if this was the position then the allegation of abusing, assault and theft was falsely introduced in the prosecution story in order to make the offence serious. The learned counsel for the petitioner submitted that in the complaint, some specific allegations were made with regard to assault, abuse and theft. Be that as it may, but in view of evidence of P.W.2 in Para-15, I find that the learned trial court has rightly considered that it was simply a dispute of claim relating to money to be returned to the complainant after settlement of the rental amount and that the allegation of abusing, assault and theft was introduced purposely to make the allegation grievous. Learned trial court also considered that the complainant says that he has not been paid any amount of sale proceed of potato after adjustment of the rental, but the O.Ps. proved before the trial court that in Cr.Misc.No. 16787 of 2006, which was filed by the O.Ps. the complainant had received a sum of Rs.31,697/- under Demand Draft 3 No. 797112 dated 23rd November 2005 of Pubjab National Bank through his counsel towards the payment for the potato. The learned trial court considered in its judgment that the complainant had already received money of potato under Cr.Misc.No. 16787 of 2006 through his counsel and despite that he has taken a plea of non-payment in the criminal case which shows lack of bona fides in the complainant. The learned trial court considered that in such view of the matters, any case under Section 406 of the Indian Penal Code as put by the complainant was proved. Thus considering, the learned trial court found the complainant’s case not proved beyond doubt and recorded an order of acquittal. I do not find any perversity or illegality in the impugned judgment. Thus, finding no merit, this application is dismissed. Jay/ ( C. M. Prasad, J )