CRIMINAL MISCELLANEOUS No.33489 OF 2000 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. M/S ASIAN SKY SHOP, A COMPANY HAVING ITS REGISTERED OFFICE AT PLOT NO.99, MORAL COOPERATIVE INDUSTRIAL ESTATE, MAROL, OFF. M.V. ROAD, ANDHERI (E), MUMBAI- 400 059 THROUGH ITS CONSTITUENT ATTORNEY MRS. MYTHELI IYER. 2. SADANAND S. PAWAR, SON OF SHRI SADANAND SAKHA RAM PAWAR, DEPUTY GENERAL MANAGER, SALES AND MARKETING, M/S ASIAN SKY SHOP (ASK) PLOT NO.99, MORAL COOPERATIVE INDUSTRIAL ESTATE, MAROL, OFF. M.V. ROAD, ANDHERI (E), MUMBAI- 400 059. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. MR. ANUPAM PRIYADARSHI, SON OF SHRI K.K. SINGH, 317, NARAIN PALAZA, EXHIBITION ROAD, PATNA-1. ... ... OPPOSITE PARTIES. WITH Cr.Misc. No.10846 oF 2001 ---- 1. SATYABRATA SENGUPTA, SON OF SHRI SUNIL SENGUPTA, AREA SALES MANAGER, ASIAN SKY SHOP, C/O VISIONARY MARKETING, 95 BALLYGUNGE PALACE, CALCUTTA-19. 2. ANAND GUTGUTIA, SON OF SHRI BIMAL GUTGUTIA, RESIDENT OF GILANPARA, POLICE STATION KOTWALI, DISTRICT DUMKA, JHARKHAND. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. ANUPAM PRIYADARSHI, SON OF SHRI K.K. SINGH, 316/317 NAYAN PALAZA, EXHIBITION ROAD, PATNA. ... ... OPPOSITE PARTIES. ---- For the Petitioners : Mr. S.M. Ashraf, Adv. (In both cases) For the State : Mr. Anuj Kumar Shrivastava, A.P.P. (In Cr.Misc.No.33489/2000) Mr. Sunil Kumar Pandey, A.P.P. (In Cr.Misc.No.10846/2001) ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Learned counsel for the petitioners files supplementary affidavit. Keep it on 2 record. 2. In both the cases, order of cognizance dated 29.2.2000 passed by Judicial Magistrate, Ist Class, Patna in Complaint Case No.150(C) of 2000, Tr. No.851 of 2000 is under challenge and, accordingly, both the petitions were heard together and are being disposed of by a common judgment. 3. Short fact of the case is that the opposite party no.2 filed a complaint vide Complaint Case No.150(C) of 2000 in the court of Chief Judicial Magistrate, Patna disclosing therein that the complainant was initially authorized by Accused No.1 M/S Asian Sky Shop to sell its product after deposit of Rs.2,50,000/-. Subsequently, it was alleged that the complainant’s company was offered distributorship of Patna Territory in the changed policy and for that the complainant made a payment of Rs.10,000/- as registration cost on 8.6.1999. It was alleged that despite the fact that the complainant was appointed as Distributor for the territory of Patna, the petitioners/accused persons immediately appointed one M/S Gutgutia Agencies Private 3 Limited as C & F Distributor even for Patna. It was disclosed in the complaint petition that dispute arose on that subject and on one occasion, one of the petitioners got the complainant assaulted for which an F.I.R. vide Gandhi Maidan P.S. Case No.8 of 2000 was registered against Mr. Sadanand S. Pawar, petitioner no.2 in Cr. Misc. No.33489 of 2000. It was alleged that despite persuasion neither the accused persons cancelled the appointment of M/S Gutgutia Agencies Private Limited nor refunded the deposited amount of Rs.10,000 and as such, as alleged the complainant was cheated at the hand of the accused persons i.e. petitioners in both the cases. In the case, after enquiry, the learned Judicial Magistrate, Ist Class, by its order dated 29.2.2000, took cognizance of offence under Sections 406 and 420 of the Indian Penal Code. 4. Mr. S.M. Ashraf, learned counsel appearing on behalf of the petitioners, while pressing the present petition, submits that on perusal of the complaint petition itself, no offence is made out. From the statement made in paragraph-11 of the complaint 4 petition itself, it is evident that the said amount was non refundable. Meaning thereby that for registration of the complainant as Distributor of Patna, the said amount of Rs.10,000/- was deposited by the complainant. Since the said amount was non refundable, the allegation of cheating is not applicable in the facts and circumstances of the present case. Moreover, learned counsel for the petitioners, at the time of hearing of the present petition, has filed a supplementary affidavit enclosing therewith a memorandum of understanding entered in between the complainant and accused persons. It was submitted that after filing of the complaint petition, both the parties agreed to settle their dispute outside the court and, accordingly, memorandum of understanding was prepared on 16.8.2002. It was submitted that litigations in between the parties were going on since long and all the disputes between the parties had come to an end after execution of memorandum of understanding between the parties. Learned counsel has referred to Annexure-1 to the supplementary affidavit, which was filed today itself. 5 Annexure-1 is a copy of memorandum of understanding. Learned counsel for the petitioners has further referred to Annexure- 2 to the petition to show that whatever dues were outstanding has already been cleared and account has already been settled. The complainant had given a receipt in respect of receiving of Rs.1,32,525/-. 5. In Cr. Misc. No.33489 of 2000, despite the opposite party no.2 had entered his appearance through his counsel, at the time of hearing, none has come forward on his behalf. Mr. Ashraf submits that since entire payment was made to the complainant, it appears the complainant had left his interest in the present proceeding and as such the complainant has not preferred to appear at the time of hearing. 6. In this case, in absence of any representation on behalf of opposite party no.2, I have heard learned Additional Public Prosecutor, appearing on behalf of the State in both the cases. 7. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on 6 record. Prima facie, the court was satisfied on the basis of averment made in the complaint petition no offence was made out. Moreover, after subsequent development, which has been brought on record by filing supplementary affidavit, it appears that no purpose will be served by rejecting the present petition and directing the petitioners to participate in the criminal proceeding before the court below. 8. In view of the facts and circumstances of the present case, it is desirable to interfere with the order of cognizance and, accordingly, order of cognizance dated 29.2.2000 passed by Judicial Magistrate, Ist Class, Patna is hereby set aside and both the petitions stand allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 30.7.2010 N.A.F.R./N.H.