IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19908 of 2007 RAM SINGAR RAI, son of Jaimangal Rai @ Bangar Rai, resident of village – Balhan, P O – Haridaspaur, P S Kanti, Distt. Muzaffarpur. Versus 1. STATE OF BIHAR 2. Ram Balak Sharma, son of Jaimangal Rai @ Bangar Rai, resident of Village – Balhan, P O – Haridaspur, P S – Kanti, District – Muzaffarpur. ----------- 05. 12.05.2009 Heard learned counsel for the petitioner. There is no representation on behalf of opposite party No.2 despite valid service of notice on him. Petitioner is seeking quashing of the order dated 3.4.2006 by virtue of which learned Judicial Magistrate, Ist Class, Muzaffarpur has taken cognizance against him under section 379 of the Indian Penal Code in Complaint Case No. 1317 of 2005. According to the complaint, six sisam trees were cut and illegally taken away from the part and parcel of the land described in the complaint. Matter was investigated by the police and final form was submitted stating therein that the complainant and present petitioner are brothers. They are litigating over property and even a civil suit is now going on between the parties. In that view of the matter the continuance of the criminal proceeding which is basically a civil dispute between two brothers is an abuse of the process of the court. Since the opposite party No.2 has chosen not to appear and rebut the submissions made by the petitioner, this Court is inclined to accept the submission based on the material that the case seems to have been instituted out of malice to harass the petitioner which fact has also been reflected after investigation by the police. Cognizance - 2 - has been taken on protest. In the totality of the circumstances the order taking cognizance dated 3.4.2006 stands quashed. The application is allowed. rkp (Ajay Kumar Tripathi, J)