IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.57690 of 2007 1. AJIT KUMAR SINHA 2. ASHOK KUMAR SINHA, BOTH SONS OF LATE RANGNATH PRASAD, BOTH PROPRIETORS OF M/S SONA PHARMA SITUATED AT AP SARA MARKET, PULPAR, BIHARSHARIF, P.S. BIHARSHARIF, DISTRICT NALANDA. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. BINAY KUMAR PANDEY, SON OF SRI SHAMBHU NATH PANDEY, PROPRIETOR OF M/S GRIFF HEALTH CARE PVT. LTD. SITUATED AT M.I.G. 123, LOHIANAGAR, KANKARBAGH, P.S. LOHIANAGAR, DISTRICT PATNA. ... ... OPPOSITE PARTIES. ----------- 5. 16.11.2010. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 8.10.2007 passed by Shri Bijay kishore Choudhary, Judicial Magistrate, Ist Class, Patna in Complaint Case No.2758(C) of 2007. By the said order, learned Magistrate has taken cognizance of offence under Sections 420, 406 and 120B of the Indian Penal Code. Short fact of the case is that the opposite party no.2, who was Distributor of medicine, filed a complaint in the court of Chief Judicial Magistrate, Patna, which was numbered as Complaint Case No.2758(C) of 2007. It was disclosed in the complaint that petitioners had approached the complainant for being appointed as his stockist and thereafter, the complainant had 2 supplied medicine to the tune of Rs.1,50,985.32 paise. It has been accepted by the complainant that subsequently, the petitioners paid Rs.94,004/- and also returned medicine to the tune of Rs.2,357/-. Accordingly, as per complainant, Rs.54,624.32 paise remained outstanding. After vigorous persuasion and despite service of legal notice, the said amount was never returned to the complainant. Accordingly, the complaint was filed. After completing enquiry, the learned Magistrate, by the impugned order, has taken cognizance of the offence as mentioned above. Shri Abinash Kumar, learned counsel for the petitioners, while challenging the order of cognizance, submits that from the contents of the complaint petition itself, no offence either under Section 420 or 406 of the Indian Penal Code is made out. It was submitted that it was dispute of accountancy only. Learned counsel for the petitioners has taken the stand that certain amount is still outstanding against the complainant. The petitioners, after receipt of the legal notice, had duly replied him and he also demanded refund of certain amount. On the basis of averment made in the complaint petition, it was submitted that right from the very beginning, it 3 is evident that the petitioners had never intended to commit offence of cheating due to the reason that complainant himself had admitted that Rs.94,000/- and odd was paid to the complainant and some medicines were also returned. Shri Shiv Nandan Roy, learned Senior Counsel appearing on behalf of opposite party no.2, has opposed the prayer of the petitioners. It was submitted that on the basis of averment made in the complaint petition, it is specific case of commission of offence under Section 406 of the Indian Penal Code. It was submitted that the material was entrusted to the petitioners on an understanding that after sale of the medicine, entire amount will be refunded. However, same has not been refunded as indicated in the complaint petition. I have also heard Smt. Indu Bala Pandey, learned Additional Public Prosecutor for the State. Besides hearing learned counsel for the parties, I have also perused the materials available on record particularly averments made in the complaint petition. After going through the complaint petition, the court is satisfied that no offence is made out. After going through the 4 N.H./ materials on record, it appears that it was dispute for recovery of the certain amount for which criminal court may not be misused. There is other remedy available to the complainant and on such allegation, the petitioners cannot be prosecuted. Accordingly, the court is satisfied that it is a fit case for exercising inherent jurisdiction in favour of the petitioners. Accordingly, the order dated 8.10.2007 passed by the Judicial Magistrate, Ist Class, Patna in Complaint Case No.2758(C) of 2007 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.)