IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10226 of 2000 SUBHAS CHANDRA JHA son of Late Umesh Chandra Jha presently posted as Branch Manager, Bihar State Financial Corporation, Shahabad Branch, Pakari Road, Ara, District- Bhojpur …… ..…..Petitioner Versus 1.THE STATE OF BIHAR 2.Ram Sagar Pandit son of Laddu Lal Pandit resident of village Bhuswar, P.S.-Bibhutipur, District Samastipur …… ……. Opp.Parties -------- For the petitioner : Mr. Girjesh Kumar For the State : Mr.A.M.P.Mehta, Addl.P.P. -------- 7. 1.10.2010 Heard learned counsel for the petitioner and the State. Despite valid service of notice, opposite party no.2 has not preferred to appear before this court either personally or through counsel. On 14.7.2010 when the case was taken up, it was informed that learned counsel appearing on behalf of opposite party no.2 had already joined judicial service. Accordingly, this court felt it necessary to issue notice to opposite party no.2. Acordingly notice was issued which has been received as per the report at flag ‘X’. Even after service of notice, the opposite party no.2 has chosen not to appear. The sole petitioner, who at the relevant time was Branch Manager, Bihar State Financial Corporation, Shahabad Branch, Pakari Road, Ara, District-Bhojpur, while invoking the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure, has prayed to quash an order dated 5.11.1998 passed by Sub. Divisional Judicial Magistrate, Rosera, Samastipur in C.R. No.70 of 1998/Tr. No.507 of 1999. By the said order, the 2 learned Magistrate has taken cognizance of the offence under Section 323 of the Indian Penal Code against the petitioner. Short fact of the case is that opposite party no.2 filed a complaint in the court of Additional Chief Judicial Magistrate, Rosera, Samastipur which was numbered as C.R. No.70 of 1998. In the complaint petition it was disclosed by opposite party no.2 that he had purchased a vehicle i.e. Tata Maxi bearing registration no.BR-007M-2666 through Bihar State Financial Corporation (hereinafter referred to as ‘BSFC’). The vehicle was hypothecated to BSFC. It was alleged that despite the fact that complainant was making payment of instalment, by committing criminal offence the vehicle of the complainant was forcibly taken by the accused persons and thereafter a first information report vide Bibhutipur P.S. Case No.85 of 1999 was registered. It has further been disclosed that after seizure of the vehicle in question, by an order of the learned Magistrate the same was released in favour of BSFC. It has been alleged in the complaint petition that after release of the vehicle in favour of BSFC, the petitioner, who was Branch Manager and two other unknown persons came to the house of the complainant and pressurized him to clear the entire dues. After clarification given by the complainant the accused persons became furious and assaulted the complainant. Accordingly, the complaint was filed. After conducting enquiry, the learned Magistrate by its order dated 5.11.1998 took cognizance of the offences under sections 323 of the Indian Penal Code. 3 Aggrieved with the order of cognizance, the petitioner approached this court by filing the present petition. On 30.11.2000 the case was admitted for hearing. While admitting the case, an interim order of stay was also granted. On perusal of the complaint petition itself, it appears that the complaint was filed maliciously. The fact indicates that the complainant on the basis of hire purchase agreement had taken a vehicle in question through BSFC and due to non-payment of instalment, it was subsequently seized. Thereafter, the complainant filed the first information report and subsequently by an order of the learned Magistrate the vehicle in question was released in favour of BSFC. It appears that after failure to get the possession of the vehicle back in his favour the complainant filed the present complaint petition with an oblique motive. Moreover, the petitioner at the relevant time was Branch Manager and allegation which has been made in the complaint petition appears to be not probable. In the peculiar facts and circumstances of the case, the court is of the opinion that for the just decision in the matter, it is necessary to interfere with the order of cognizance. Moreover, the learned Magistrate had taken cognizance of the offence under section 323 of the Indian Penal Code for an alleged occurrence which had taken place long back in the year 1998. Accordingly, the impugned order of cognizance dated 5.11.1998 passed by Sub- Divisional Judicial Magistrate, Rosera, Samastipur is hereby set aside and the petition stands allowed. Md.S. ( Rakesh Kumar, J.)