CRIMINAL MISCELLANEUS No.3929 OF 2002 With CRIMINAL MISCELLANEUS No.4614 OF 2002 ------- In the matter of applications under section 482 of the Code of Criminal Procedure. ------- NAND KISHORE ISSAR son of late Janak Issar resident of village-Konaila, P.S.-Dlasingsarai, District- Samastipur ……..Petitioner in Cr.Misc. No.3929/2002 Shivendra Kumar Issar son of Nand Kishore Issar resident of village-Konaila, P.S.-Dalsingsarai District-Samastipur …….Petitioner in Cr.Misc No.4614/2002. Versus 1.The State of Bihar 2.Subhash Chandra Kejariwal son of late Shiv Prasad Kejariwal Proprietor M/s Shiv Prasad Suresh Kumar, Mohalla-Sutapatti, P.S., Town and Distirct-Muzaffarpur. ….. Opp.Parties in both the cases ------ For the petitioners: Mr.Prashan Vedasen Mr.Subhash Chandra Bose For Opp.Party No.2: None For the State: Mrs. Indu Bala Pandey,A.P.P. ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. In the aforesaid two cases the petitioners have prayed for quashing on an order dated 6.11.1999 passed by learned Chief Judicial Magistrate, Muzaffarpur as well as order dated 23.2.2000 passed by learned Sub.Judicial Magistrate (East) Muzaffarpur in Complaint Case No.2114 of 1999/Trial No.803 of 2001. By the said order the learned Chief Judicial Magistrate after taking cognizance transferred the case to the court of Sub.Divisional Judicial Magistrate (East) Muzaffarpur (hereinafter referred to as SDJM) for its enquiry and trial. Thereafter by order dated 23.2.2000 the SDJM had directed for summoning the petitioners. Accordingly, both the 2 petitions were heard together and are being disposed of by this common order. 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Muzaffarpur which was numbered as Complaint Case No.2114 of 1999 alleging therein that the petitioners were merchants and the complainant was a proprietor of M/s Shiv Prasad Suresh Kumar. The complainant was dealing with business of cloth. It was disclosed in the complaint petition that certain cloths were handed over to the accused persons on the condition that after sale, the sale proceed will be deposited with the complainant or cloths will be returned if not sold. It was further disclosed that some amounts were paid by the petitioners to the complainant. Thereafter, neither remaining clothes nor sale proceed was returned by the petitioners. On the aforesaid allegation, the complaint petition was filed and, thereafter, after conducting enquiry, the learned SDJM by its order dated 23.2.2000 took cognizance of the offence under section 406 of the Indian Penal Code and directed to summon the petitioners. 3. Aggrieved with the order dated 6.11.1999 passed by the learned Chief Judicial Magistrate, Muzaffarpur whereby the learned Magistrate after taking cognizance under section 192 of the Code of Criminal Procedure had transferred the case to the court of learned SDJM and aggrieved with the order dated 23.2.2000 whereby the learned SDJM after conducting enquiry had summoned the petitioners, the petitioners has approached this court by filing the aforesaid two petitions. This court while issuing notice to opposite 3 party no.2 directed that during the pendency of this application further proceeding in Complaint Case No.2114 of 1999, Trial No.803 of 2001, pending in the court of Sub.Divisional Judicial Magistrate (East), Muzaffarpur, shall remain stayed. Despite issuance and service of notice on opposite party no.2, the opposite party no.2 has chosen not to appear in the present case. 4. Mr.Prasahant Vedasen, learned counsel appearing on behalf of the petitioners, while challenging both the aforesaid orders, submits that from the contents of the complaint petition it is evident that the dispute between the parties was purely civil in nature. It was submitted that it can be said to be a dispute of accountancy and, as such, the learned Magistrate was not required to proceed with the case. It was submitted that orders of cognizance and summoning of the accused persons are liable to be set aside. 5. I have perused the complaint petition and materials available on the record of the case. In the present case, from the complaint petition itself it is evident that the intention of the petitioners was never to cheat the complainant. Had there been any intention to cheat, there was no question to make part payment to the complainant. The complainant himself has admitted in the complaint petition that certain amounts were paid to him. Further in the statement recorded on solemn affirmation the complainant had accepted that the accused persons were doing business with the complainant since 1995. Meaning thereby that they were in business term. In view of the facts and circumstances of the present case, I am of the view that there were no sufficient materials available with 4 Patna High Court The 23rd August, 2010 Md.S./NAFR the learned Magistrate to proceed with the case. 6. Accordingly, order of cognizance dated 6.11.1999 passed by learned Chief Judicial Magistrate, Muzaffarpur as well as order dated 23.2.2000 passed by learned SDJM (East) Muzaffarpur in Complaint Case No.2114 of 1999/Trial No.803 of 2001 are hereby set aside and both the petitions are allowed. (Rakesh Kumar,J.)