IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6248 of 2004 RAJESH KUMAR SINHA, SON OF SHEO BALAK PRASAD, RESIDENT OF MOHALLA-NAYI SARAI, POLICE STATION-BIHAR SHARIF, DISTRICT-NALANDA……………………………………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. HEERA LAL, SON OF LATE NAGINA MAHTO, EMPLOYEE OF M/S. S.K.G. CONSOLIDATE LTD. ABHAY BHAWAN, FRASER ROAD, P.S. KOTWALI, DISTRICT-PATNA. …………………………………………………….OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Pramod Kumar and Ritesh Kumar, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : None. ------------ 15. 27.2.2009. This application by the sole accused of Complaint Case No.594(C) of 2002 has been filed for the quashing of the entire criminal prosecution arising therefrom including the order dated 18.11.2003, whereby cognizance has been taken against the petitioner for commission of offence under Section 138-A of the Negotiable Instruments Act(hereinafter referred to as “the N.I. Act”). The aforesaid complaint was filed by M/s. S.K.G. Consolidate Limited(hereinafter referred to as “the Company”) through its employee Alok Bakshi, inter alia stating that the complainant Company was carrying out business in manufacturing country made liquor and supplying the same to its retailers in Bihar and in course of such business the accused has taken a contract for supplying the liquor to the liquor vendors at Biharsharif and dues of Rs.5,00,000/- had accrued against the accused - 2 - who had issued a cheque dated 28.1.2002 which on being presented for encashment was returned with the endorsement “insufficient fund”. It is said that the accused was informed through an employee and notice was sent which was returned with the endorsement “addressee always remains outside”. The grievance of the petitioner is that although the said complaint was filed by Alok Bakshi on behalf of the Company on 5.4.2002 and sufficient opportunities was given to the complainant to get the statement on S.A. recorded, the said Alok Bakshi, never turned up and even after the case was transferred to the court of a Judicial Magistrate under Section 192(1) Cr.P.C. opportunities from 25.6.2002 to 4.8.2003 were afforded to the complainant to get himself examined on S.A. and also produce his witnesses but the case lingered on. It was only on 3.2.2003 that the statement of one Heera Lal was recorded on solemn affirmation although he was not the complainant. Having waited for the complainant to produce his witness and having given a last warning to the complainant the learned Magistrate in the absence of any material or evidence available on record summoned the accused by order dated 18.11.2003. O.P. No.2, the said Heera Lal who had got his statement on S.A. recorded was summoned and since he had avoided receiving the same, paper publication was made and even them he has preferred not to appear. I have perused the complaint petition filed on behalf of the Company as also the entire order sheet of the trial court. The petitioner is justified in raising the grievance that the person who had sworn and filed - 3 - the complaint petition, namely, Alok Bakshi, never got his statement on S.A. recorded notwithstanding several opportunities given to him and one Heera Lal who claimed to be an employee of the Company by way of proxy came forward to register his statement on S.A. It also appears that no other witness on behalf of the complainant was examined at the inquiry under Section 202 Cr.P.C. and the learned Magistrate for reasons best known to him took cognizance. It is unfortunate that the learned Magistrate never applied his mind to the situation at hand and mechanically took cognizance in a case when the complainant had not at all got his statement recorded on S.A. and one Heera Lal who was not even mentioned as a witness in the complaint petition came forward to give his statement on S.A. That apart not a single other witness had been examined and I fail to understand how on this material the learned Magistrate took cognizance. The taking of cognizance and the continuance of the proceedings in view of the fact that the complainant never gave his statement before the court and no other witness had been examined appears to be an abuse of the process of the court which cannot be sustained in law. The entire criminal proceedings being ab initio void is hereby quashed and the application is allowed. P.S. (Abhijit Sinha,J)