CRIMINAL MISCELLANEOUS No.365 OF 2007 In the matter of an application under Section 482 of the Code of Criminal Procedure -------------- 1. Mr. KANWALJIT SINGH BAKSHI @ MR.K.S.BAKSHI, Managing Director, Oriental Structural Engineers Private Limited, 21, Commercial Complex, Malcha Marg, Diplomatic Enclave, New Delhi 2. Mr. Jeevan Prakash Gupta @ J.P.Gupta, Dy. Director, Oriental Structural Engineers Private Limited,, Padyapur Farm, Shahpur, Aurangabad,Bihar ------------------ Petitioners Versus 1. THE STATE OF BIHAR 2. Sunil Dutt Mishra, Son of Late G.D. Mishra, 2B, 155, G.D. Mishra Path, New Patliputra,Patna --------------- Opp.Parties. --------------- For the Petitioners: Sri Avanish Kumar Singh, Advocate For the informant: Sri Sanjay Kumar, Advocate For the State: Smt Pushpa Sinha no.2, A.P.P. -------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Two petitioners, who are Managing Director and Dy.Director of M/S Oriental Structural Engineers Private Limited , have approached this Court by filing the present petition with a prayer to quash an order dated 9.3.2006 passed by Sri K.M.Tiwari, learned Judicial Magistrate, 1st Class, Patna, in Complaint Case No.2028 ( C) of 2005. By the said order, learned Magistrate has taken cognizance of offence under Section 406/34 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2 claiming to be an ex employee of M/S Oriental Structural Engineers Private Limited filed a complaint petition in the court of learned Chief Judicial Magistrate, Patna, which was numbered as Complaint Case No.2028 ( C) of 2005. It was alleged in the complaint petition that the accused had illegally withheld 2 the due salary of the complainant to the tune of Rs.3, 37,000/-. It has been alleged that despite best efforts accused persons have not cleared the dues and accordingly, it has been alleged in the complaint petition that petitioners had committed offence under Section 406 read with Section 120B of the Indian Penal Code. On the aforesaid allegation, complaint was filed and after conducting enquiry, learned Magistrate vide its order dated 9.3.2006 took cognizance of offence under Section 406/34 of the Indian Penal Code 3. Aggrieved with the order of cognizance, both the petitioners approached this Court by filing the present petition, which was admitted on 13.7.2007. While admitting, it was directed to issue notice to Opp.Party no.2 and it was further directed that during the pendency of this application warrant of arrest issued against the petitioners, if any, shall remain stayed. The order of stay is still continuing. 4. Sri Avnish Kumar Singh, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that on perusal of entire complaint petition, no offence under Section 406 of the Indian Penal Code is made out. It has been submitted that even after filing of the complaint petition, an agreement was entered in between the petitioner Company and the complainant-Opp.Party no.2 As per the agreement, the petitioners have already made payment of Rs.2,50,000/- to the complainant. It has been submitted that as per the deed of agreement, the complainant had given assurance to the petitioners that he will withdraw the present complaint case. 5. In this case, Sri Sanjay Kumar, learned counsel appearing on behalf of Opp.Party no.2 has controverted the stand of learned counsel for 3 the petitioners. He has argued that the said agreement was got executed keeping the complainant in dark and, as such, the said agreement has got no legal sanction. However, he has not disputed that subsequent to the said agreement, the payment of Rs.2,50,000/- was received by the complainant. 6. Smt. Pushpa Sinha No.2, learned Addl.Public Prosecutor appears on behalf of the State. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record, particularly, the contents of the complaint petition. After going through the complaint petition, the Court is of the opinion that no offence under Section 406 of the Indian Penal Code is made out. Moreover, subsequent development i.e. payment of Rs.2, 50,000/- to the complainant by the petitioners has also persuaded this Court to interfere with the order of cognizance. 8. Accordingly the order of cognizance dated 9.3.2006 passed in Complaint Case No.2028 ( C) of 2005 by Sri K.M.Tiwari, learned judicial Magistrate, 1st Class, Patna is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 27th October,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)