CRIMINAL MISCELLANEOUS No.6205 OF 2000 --------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.SAHA KANTI LAL NAN CHAND son of A.N.Sah, resident of Himmatnagar, 114 Gujarat Housing Board, behind Nutan Mills Saraspur, Ahmabad-18, Managing Director Montage Pharmaceuticals Pvt. Ltd., 218 Spectrum Commercial Centre, Ahmedabad-380001 2.Saha Arvind Kumar Nan Chand son of A.N.Sah, Assistant Engineer Narmada Project Cannel Division No.4, Govt. of Gujarat, U.T. Plot No.446 near G.H.Petrol Pump 16, Gandhinagar ……. …….Petitioners Versus 1.STATE OF BIHAR 2.Sri Ramesh Sharma, Constituted Attorney of Smt. Baby Sharma Proprietor of M/s Harihar Distsributors Road No.8C, Rajendra Nagar, Patna. ……. …….Opp. Parties. ------- For the petitioners: Mr. R.K.Shukla For the State: Mr. Raj Ballabh Singh, A.P.P. ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. Two petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 20.3.1999 passed by Chief Judicial Magistrate, Patna, in Complaint Case No.330C of 1999. By the said order learned Chief Judicial Magistrate has taken cognizance of the offences and transferred the case under section 192(1) of the Code of Criminal Procedure to the court of Sri B.K.Sinha, Judicial Magistrate, Ist Class, Patna for its enquiry and trial. The learned Magistrate thereafter conducted enquiry and after examining the complainant on solemn affirmation as well as enquiry witnesses, by its order dated 7.5.1999 was satisfied that prima facie offence under sections 406, 420 and 120B of the Indian Penal Code was made out and directed for summoning the accused persons i.e. the petitioners. 2 2. Short fact of the case is that opposite party no.2 filed a complaint vide Complaint Case No.330C of 1999 in the court of Chief Judicial Magistrate, Patna against the petitioners and accused no.1 M/s Montage Pharmaceuticals Pvt. Ltd. for the offences under sections 406, 420 and 120B of the Indian Penal Code. It was alleged in the complaint petition that petitioner nos.2 and 3 have approached the complainant, who was the constituted attorney of Smt. Baby Sharma Proprietor of M/s Harihar Distributors Road No.8C, Rajendra Nagar,. Patna dealing in business of whole sale Distributor and Consignee Agent of Pharmaceutical Medicines of different companies. It was alleged that the complainant was first appointed as Super Stockists and thereafter in the second week of April 1998 after the complainant developed faith in the petitioners, the complainant was appointed as sole consignee agent for the State of Bihar for all the pharmaceutical products of accuse no.1, M/s Montage Pharmaceuticals Pvt. Ltd. It was alleged that for appointing sole consignee the complainant was persuaded to deposit security amount of rupees three lakh and he paid the said amount on different dates, description of same has been given in paragraph-7 of the petition. The total security amount was deposited by the complainant to the tune of rupees three lakh. It was alleged that the business continued for some time. Subsequently, the complainant started to withdraw Area Managers and representatives as well as the required commission amount, as alleged, was also not being paid to the complainant by the accused persons and total dues owned by the accused persons to the complainant came to Rs.4,73,080/-(rupees four lakh seventy three thousand eighty six only) by the month of 3 February, 1999 which includes rupees three lakh security deposit. It was alleged that the complainant was cheated by the accused persons. After filing the complaint petition, the complainant was examined on solemn affirmation and in support of the complaint petition the witnesses were also examined and finally by order dated 7.5.1999 the order of cognizance was passed and the petitioners were summoned to appear. 3. Mr. R.K.Shukla, learned counsel appearing on behalf of the petitioners at the very outset has submitted that from perusal of the entire complaint, it is evident that no criminal offence was committed by the petitioners. It was a dispute which was civil in nature and it can hardly be said that it was dispute in relation to accountancy between the two parties. It was further submitted that before filing the complaint petition, the complainant had got a legal notice served on the petitioners and thereafter it was properly replied on behalf of the petitioners vide annexure-6 to the petition. He pointedly placed annexure-6 which shows that while replying the legal notice the petitioners had sent statement of account along with the reply. It was asserted that the petitioners i.e. the accused persons were liable to get the amount of rupees five lakh forty four thousand and odd recovered from the complainant. It was further clarified through reply to the legal notice that the petitioners had already issued credit note for which in the complaint petition an allegation was made that no credit note was issued by the petitioners. Learned counsel for the petitioners further submitted that a suit for recovery of Rs.10,92,902/- (rupees ten lakh ninety two thousand and nine hundred two only) was filed by the petitioners-company against M/s 4 Harihar Distributors in a court of civil jurisdiction in Himmat Nagar. It was submitted that the said suit was filed prior to the passing of the order of cognizance i.e it was filed on 13.4.1999. Learned counsel for the petitioner also referred to annexure-7 to the petition, which is a photo copy of certified copy of the plaint. Learned counsel has further submitted that merely filing of a complaint petition was not end of the matter but even when complainant came to know that the petitioners-company has filed a suit for recovery of more than ten lakh rupess against the complainant, the complainant has telephonically given threat to the petitioners and, thereafter, the petitioners had filed a petition before the concerned Superintendent of Police for providing security and thereafter security was also provided. Learned counsel for the petitioners, in view of the facts and circumstances of the case, has argued that the order of cognizance and the entire proceeding in the present case i.e. Complaint Case No. 330C of 1999 are liable to be set aside on the ground that it was filed maliciously with a view to put pressure on the petitioners-company so that he may not take step for recovery of dues against the complainant. It was further submitted that on perusal of entire complaint petition it appears that no offence was made out and it further appears that allegation was made in relation to dispute regarding accountancy. On such complaint no criminal proceeding can be allowed to proceed. 4. In this case, despite service of notice on opposite party no.2, the opposite party no.2/complainant has not preferred either to appear himself or through his Advocate. Accordingly, in absence of opposite party no.2 the matter was heard. 5 Patna High Court The 12th July,2010. Md.S./NAFR. 5. I myself have perused the materials available on record. The court is aware that while hearing a petition under section 482 of the Code of Criminal Procedure the court is not required to examine the documents filed along with the petition unless same has been brought on the record in the complaint petition or same is a public document or proved through process of law. However, in view of peculiar facts and circumstances of the present case, I have perused the materials available on the record as well as reply given on behalf of the petitioners to the legal notice which was issued on behalf of the complainant. The reply has been placed as annexure-6 to the petition. Perusal of annexure-6 makes it clear that the petitioners were also claiming dues against the complainant. Annexure-7 further makes it clear that a suit was filed on behalf of the petitioners for recovery of more than ten lakh rupees against the complainant. The contents of the complaint petition itself makes it clear that it was merely an accountancy dispute and for such allegation, criminal proceeding cannot be allowed to proceed and, as such, for the ends of justice, it is necessary to quash the order of cognizance and the entire proceeding. 6. Accordingly, order of cognizance dated 20.3.1999 and order dated 7.5.1999 are hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)