CRIMINAL MISCELLANEOUS No.6517 OF 2005 In the matter of an application under section 482 of the Code of Criminal Procedure. Kush Kumar, aged about 60 years, son of Late Umesh Prasad, resident of G-16, Vijay Nagar, Hanuman Nagar, Police Station – Kankarbagh, District – Patna. ----------Petitioner. Versus 1. The State of Bihar 2. M/S Maruti Pharma, through its Manager Alakh Niranjan Sah, son of Kartik Prasad, resident of Maruti Pharma, Govind Mitra Road, P.S. – Pirbahore, District – Patna. ------------Opposite Parties. For the Petitioner : Mr. Mukeshwar Dayal, Adv. Mr. Vikas Mohan, Adv. For the State : Mr. Atul Chandra, APP. ------- P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ------- Akhilesh Chandra, J. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. None appeared on behalf of complainant opposite party no.2. 2. It is verbally submitted by learned counsel for the petitioner that complaint case no. 519C of 2001 is still pending before the court below and is running at evidence stage. 3. This is an application seeking quashing of the order dated 19.04.2001 passed in complaint case no. 519C/2001 by Sri Suresh Kumar Singh, Judicial Magistrate, 1st Class, taking cognizance against the petitioner for the offence under section 120B of the Indian Penal Code. 4. In the complaint filed against six persons including the petitioner by same order, court below did not take cognizance against named accused no.5 for the offence under Sections 420 and 465 of the Indian Penal Code but took - 2 - cognizance against remaining accused nos. 1 to 4. 5. The relevant facts for consideration is that complainant opposite party was approached by accused nos. 1 to 4 for supply of medicines as per list furnished by them who accordingly were obliged on payment made through three demand drafts after encashment till end of the year 1998 subsequently in the month of November 1999, complainant was handed over bank draft worth Rs. 93,000/- bearing no. 842193 it was also cleared by the banker, medicines was supplied in same sequence, the complainant received bank draft nos. 842195 dated 15.12.1999, 842199 dated 27.12.1999 and 842196 dated 27.01.2000 respectively for Rs. 91,000/-, 93,000/- and 91,000/- and on clearance by the drafts of the bank supplied the medicines but suddenly he received a message from the bank that last bank draft no. 842196 dated 27.01.2000 was suspected to be forged and accordingly sum of Rs. 91,000/- was deducted from the account of the complainant and other three bank drafts aforementioned worth Rs. 2,77,000/- were also earmarked and ultimately Pirbahore P.S. Case No. 28/2000 was instituted and charge sheet has also been submitted. It is further case of the complainant that on verification from the bank authorities, he could come to know that the bank drafts cleared in the year 1998 are also suspected to be stolen, forged and fabricated. With the above averments the complainant filed complaint petition stating criminal - 3 - conspiracy between the persons presenting the drafts receiving medicines and bank authorities who cleared the drafts otherwise he could not have supplied the medicines and put under loss. However, on the evidence adduced, court below only for four bank drafts issued in the month of November 1999 to January 2000 took cognizance in the manner stated above no cognizance was taken against the manager as accused no. 5 but cognizance has been taken against the petitioner who was at the relevant time clearing officer of the bank. 6. It is also undisputed that complainant opposite party no.2 had to issue cheque worth Rs. 2,77,000/- in favour of the banker but somehow or the other payment against cheque was stopped giving rise to filing of complaint case no. 495/2000 by Senior Manager of the Bank who also figured accused no.5. In the instant complaint and in the above complaint earlier filed by him, petitioner is one of the witnesses. 7. It is submitted on behalf of the petitioner that no offence is made out against him and order taking cognizance for the offence under section 120B of the Indian Penal Code against the petitioner is barred by law of limitation also. On the other hand, learned Additional Public Prosecutor submitted that cognizance has been taken for the offences including 420 and 465 of the Indian Penal Code, so question of limitation does not arise, moreover, undisputedly bank drafts were cleared by the petitioner only thereafter complainant supplied the medicines - 4 - against payment and one find morning after lapse of about two months from present received notice from the bank and had to loose substantial amount, so at this state it cannot be said that the petitioner was not in league that the other accused persons who are facing trial. 8. On behalf of petitioner copy of complaint petition no. 495/2000 filed by his Senior Manager with enclosures has also been filed and are on record as Annexure – 2, just to show that the complaint petition was filed earlier and only in retaliation of the same, instant complaint has been filed by the complainant that apart the enclosures clearly indicates that the four bank drafts worth Rs. 3,68,000/- were cleared and amount was paid to the complainant by crediting in his account respectively on 26.11.1999, 20.12.1999, 05.01.2000 and 24.01.2000 and thereafter the complainant was noticed on 27.01.2000 deducting payment against last draft from his account and compelled to issue cheque worth Rs. 2,77,000/- against remaining three. 9. No doubt complainant has though issued the cheque worth Rs. 2,77,000/- as appears managed the payment, stopped giving rise to filing of the complaint by the Bank but at the same time, in face of continued clearance of the drafts if at all they were fake for last two to three months, at this stage, it cannot be said that the authority who cleared the drafts in question, made accused in the complaint petition along with the - 5 - persons, who presented such drafts to the complainant, deserves exoneration on the ground having no league at the very initial stage of the case. 10. However, it is further made clear that any observation made above shall not in any way independent appreciation of materials by the courts below at any stage of the case including hearing on the point of charge. 11. In the result, finding no merit, accordingly, this application is hereby dismissed. Patna High Court Date : The 15th September 2010 Rajeev/ (Akhilesh Chandra, J.)