Criminal Miscellaneous No.9705 of 1998 ----------- In the matter of applications u/s 482 of the Code of Criminal Procedure ----------------- 1. ABDUL SATTAR ANSARI 2. Md. Ibrahim Ansari @ Md. Ibrahim Both sons of Mr. Biku Ansari resident of village Kasera PS Harlakhi Dist Madhubani 3. Rahmattulah @ Md. Rahmattulah son of Md. Jasim resident of village Kasra PS Harlakhi, Dist. Madhubani ...........petitioners Versus 1. STATE OF BIHAR 2. Md. Ashfaque son of Md. Israil resident of village Jalbarua P.O Keoti Dist Darbhanga ..........Opposite Parties Cr. Misc. No.24363 of 1998 1. MD. ISMAIL ANSARI , son of Md. Shalim Ansari 2. Abdul Sattar Ansari, son of Md. Bikau Ansari Both resident of village- Kasera, Police Station- Harlakhi, Dist. Madhubani ............Petitioners Versus 1. STATE OF BIHAR 2. Md. Ashfaque, son of Md. Israil resident of village- Jalwara, Police Station- Keoti, district Darbhanga ........Opposite Parties --------------- For the petitioners in both the cases: Mr. Ajay Kumar Thakur, Advocate For the State: Lala Kailash Bihari Prasad, Sr. Advocate (Cr Misc. No. 9705/98) Mr. Anil Kumar, Advocate (Cr. Misc. No. 24363/98) P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh, J. Heard learned counsel for the petitioners in both these quashing application which have been heard together because they relate to the same alleged occurrence. Also heard learned counsels for the State but nobody has appeared on behalf of the complainant although name of learned counsel appears in the daily 2 cause list. In Cr. Misc. no. 9705/98 the three petitioners have challenged the order of cognizance dated 9-4-96 passed by Sri A. K. Gupta, Judicial Magistrate, 1st Class, Muzaffarpur in Complaint case No. 295/96 leading to Trial No. 237/98. It has been shown from the records that prior to lodging of this complaint case on 29-2-96 the complainant had lodged a FIR with Keoti Police Station in the district of Darbhanga on 28-9-95 with respect to same very occurrence of alleged cheating etc. against two of the petitioners Md. Ismail and Abdul Sattar leading to Keoti PS case no. 90/95 dated 28-9-95. After investigation police submitted final report dated 31-1-96 disclosing that the allegations were found false and steps were being taken against the informant u/s 182/211 of the I.P.C. In fact as would appear from the records of Cr. Misc. No. 24363/98, in that case also the same complainant lodged a protest petition against the final report. Learned C.J.M., Darbhanga accepted the final report but decided to treat the protest petition as a complaint and against cognizance in that complaint case Cr. Misc. no. 24363/98 has been preferred. So far as Cr. Misc. no. 9705/98 is concerned, there is no difficulty in accepting the contention advanced on behalf of the petitioners that it is an abuse of the process of the court because for the same alleged occurrence a criminal case, as discussed earlier, was lodged at Darbhanga which is subject matter of Cr. Misc. No. 24363/98. 3 In the facts of the case, the prayer made in Cr. Misc. no. 9705/98 is allowed and the entire proceedings of complaint case no. 295/96 leading to Trial No. 237/98 pending before Judicial Magistrate, 1st Class, Muzaffarpur is hereby quashed. So far as the other quashing application, i.e., 24363/98 is concerned, the same is directed against the order dated 18-9-97 passed by learned Judicial Magistrate, 1st Class, Darbhanga in Trial No. 513/97 whereby on the basis of deposition of complainant and his witnesses, in course of enquiry, and on the basis of some documents the learned Magistrate held that prima facie a case u/s 406 of the IPC was made out and accordingly he took cognizance of that case and issued summons against the two petitioners named as accused namely, Md. Ismail Ansari and Abdul Sattar. In order to assail the legality and validity of the order dated 18-9-97, learned counsel for the petitioners tried to place reliance upon certain documents produced by way of evidence in support of contention that no case could be made out u/s 406 of the IPC because the vehicles were under hire purchase agreement and pursuant to agreement with the complainant the installments were paid by the petitioners to the financer. It would not be proper for this court to go into the merits of the defence case on the basis of contentions and documents which have not been proved in accordance with law. Further this exercise must be done at the appropriate stage before 4 the court concerned. In that view of the matter, it is found that it is not possible to allow the prayer for quashing of the complaint case which is subject matter of Cr. Misc. no. 24363/98 or to interfere with order of cognizance. Hence, this application is dismissed. It goes without saying that petitioners will be at liberty to raise all their defence before the appropriate court in accordance with law. Patna High Court The 11th March, 2010 NAFR/BKS (Shiva Kirti Singh, J.)