Criminal Miscellaneous No.24224 OF 1997 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure. ---- SATYADEO YADAV, SON OF LATE DHORA YADAV,RESIDENT OF VILLAGE-JIGRAWAN, P.S. MAHARAJGANJ, DISTRTICT SIWAN. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. NANHKU PANDIT, SON OF RAJPATI PANDIT, RESIDENT OF VILLAGE- JIGRAWAN, P.S. MAHARAJGANJ, DISTRICT- SIWAN. ... ... OPPOSITE PARTIES. ---- For the Petitioner : M/S Y.V. Giri, Sr.Advocate Vikas Ratan Bharti,Adv. For the State : Mr. Atul Chandra, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, aggrieved with the order dated 23.11.1996 passed by Judicial Magistrate, Ist Class, Siwan in Complaint Case No.1182 of 1996, has approached this Court while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.). By the said order, learned Magistrate, after examining the complaint petition, statement of complainant, which was recorded on S.A. and evidence of three witnesses, had taken cognizance for the offences under Sections 420, - 2 - 421 and 120B of the Indian Penal Code and ordered to issue process for securing attendance of the accused persons, which include the petitioner. 2. Short facts of the case is that the complainant filed the present complaint before the court of Chief Judicial Magistrate with an allegation that he had sent two money orders from Calcutta to his wife, who was residing at village Jigrawan, Police Station Maharajganj, District Siwan. One money order was sent for Rs.1,000/- and second was for Rs.2,000/-. The money orders were issued in the name of Smt. Sarswati Devi, who is the wife of complainant. It was alleged by the complainant in the complaint petition that though Rs.1,000/- of first money order was handed over to the wife of the complainant, the amount of second money order amounting to Rs.2,000/- was mis- appropriated by the petitioner no.1, who was Post Master in the Jigrawan Post Office in connivance with two other official accused persons. It was alleged that conspiring with each other the complainant was cheated by the accused persons. It was also alleged in the - 3 - complaint petition that in the village in question, several other persons were cheated in similar manner. After examining the complainant on S.A. and three witnesses in support of the complainant case, the learned Magistrate by the impugned order took cognizance for the offences under Sections 420, 421 and 120 of the Indian Penal Code and directed for issuance of processes against accused persons including the petitioner. 3. Learned counsel Sri Vikas Ratan Bharti appearing on behalf of the petitioner has challenged the order of cognizance on following grounds : I) On perusal of the complaint petition, no offence is made out II) It was a bonafide mistake and immediately after noticing the mistake, the accused persons took steps to get the money back from one another Sarswati Devi to whom the amount of money order was handed over due to mistake of identification. Subsequently, the amount was taken back from Sarswati Devi and steps were taken to hand over the said amount to the wife of the complainant, but the postal - 4 - report shows that she refused to accept money and thereafter, present complaint petition was filed. III) The matter was enquired by the department and department also found that it was a mistake. However, the petitioner was warned by the department that if in future such mistake is committed, departmental proceeding may be initiated against him. 4. On the aforesaid grounds, learned counsel for the petitioner has challenged the order of cognizance. He has referred to Annexures 3 to 6 of the petition to impress upon the court that bonafide steps were taken by the petitioner for handing over the said money to the real person. Annexure-3 is a typed copy of statement of one Sarswati Devi to whom payment was made. It indicates that Sarswati Devi was approached by the department for returning the money and thereafter, on 9.6.1996, the money was returned by the said Sarswati Devi to the department. Annexure-3 does not contain the date of recording of statement. Annexure-4 is the letter issued by the Sub Post Master Legal, Siwan. Annexure-4 is the typed copy of a letter - 5 - purported to be issued by Sub Post Master, Legal to the Branch Post Master, Jigrawan whereby the Branch Post Master, Jigrawan was asked to take steps to return the money to Sarswati Devi. Learned counsel for the petitioner has pointed out the endorsement of service report, which is typed on the bottom side of Annexure-4. He submits that endorsement indicates that Sarswati Devi has refused to take back the money. Annexure-5 is again a typed copy of one memo issued by the office of Superintendent of Post Offices, Siwan Division. Learned counsel for the petitioner submits that it shows that some enquiry was also conducted regarding said payment. Similarly, learned counsel for the petitioner has referred to Annexure-6 to the petition, which is a typed copy of letter issued under the signature of Postal Superintendent to this petitioner whereby he was warned that if in future such mistake is committed, then departmental proceeding will be initiated against him. By referring to aforesaid annexures, the learned counsel for the petitioner has taken a defence that it was a bonafide mistake and there was no intention on - 6 - the part of the petitioner or any of the accused persons to cheat the complainant or his wife. 5. Learned counsel for the petitioner has referred to judgment of Supreme Court reported in A.I.R. 1998 S.C. 128 (M/S Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others). He has referred to paragraph-28 of the judgment and submitted that before summoning a person to face a criminal trial as an accused, a Magistrate is required to examine the thing in detail and only thereafter, such order for summoning the accused should be passed. He submits that in the present case, without any material, the learned Magistrate in a mechanical manner has passed an order whereby cognizance for offences was taken and processes were issued. 6. Learned counsel for the petitioner has also referred to a judgment of Supreme Court reported in 2007(XIV)SCC 776 (All Cargo Movers (India) Private Limited and others Vs. Dhanesh Badarmal Jain and another). He has referred to paragraph-16 of the judgment and emphasized that the Supreme Court has held that if in a case, no offence is made out, the court is not required - 7 - to proceed with the case. Similarly, learned counsel for the petitioner has relied upon a decision of Supreme Court reported in 2007(12)SCC 1 (Inder Mohan Goswami and another Vs. State of Uttaranchal and others). Learned counsel for the petitioner has referred to paragraphs 40 and 41 of the judgment in Inder Mohan’s case and submits that in view of judgment of Supreme Court, the order of cognizance is liable to be set aside since no offence of cheating is made out on the basis of materials available on record of the case. 7. I have also heard Sri Atul Chandra, learned counsel appearing on behalf of the State. He has vehemently opposed the prayer of the petitioner. He has referred to the contents of the complaint petition and submits that contents of the complaint petition itself shows that offences under Sections 420, 421 and 120B of the Indian Penal Code has been committed by the accused persons. He submits that the plea of the petitioner that due to mistaken identification, the said amount was handed over to one another Sarswati Devi is only to be noticed and rejected. He submits that it is - 8 - specific case of complainant that he had sent two money orders, one for Rs.1,000/- and another for Rs.2,000/-. Accordingly, it is difficult to understand as to under what circumstances, the lesser amount of money order was paid to the real person and the bigger amount was handed over to some another person. He further submits that at this stage, it would be difficult to accept the defence of the petitioner. There is possibility that after noticing the detection of the crime committed by the petitioner, they had taken a defence and concocted a story of handing over the amount to an another Sarswati Devi and all these things were done with a view to create a defence in favour of the accused persons. So far as stand taken by the State is concerned, I am of the view that there is some substance, but the plea of the petitioner as well as stand taken by the State can well be looked into during the trial of the case. This is not the stage to examine all these materials. Time without number, it has been held that while examining the order of cognizance, this Court is not required to conduct a roving enquiry or mini trial and as such it is not advisable for this - 9 - Court to examine all these materials at this initial state. So far as the documents which have been annexed by the petitioner in the petition are concerned, I am of the view that those documents is not required to be looked into by this Court, while hearing a petition under Section 482 of the Code of Criminal Procedure. Moreover, the documents on which a party is going to rely can only be looked into, if same is proved by a process of law. Unless those documents are proved to be genuine, it would be difficult for this court to examine those documents. I am of the view that relying on such documents by the petitioner at this stage only amount to take a defence by the petitioner. Such defence is to be taken by the accused persons during trial at the defence stage. This is not the stage for looking into such documents by this Court. So far as case of Inder Mohan Goswami (Supra) is concerned, paragraphs 40 and 41 of the said judgment, only gives the definition of Section 415 of the Indian Penal Code. On the basis of materials available on record of this case, I am of the view that prima facie case of cheating is made - 10 - out. Even for the time being, if it is accepted that the petitioner had taken steps to get the money refunded from another Sarswati Devi, this case can be termed as a case of temporary embezzlement. However, I am not recording any opinion on this point at this stage. This can be looked into either at the stage of the charge or at subsequent stage during the trial. Similarly, the case of All Cargo Movers (India) Private Limited (Supra) does not help the petitioner. Learned counsel had referred to paragraph-16 of the said judgment. Perusal of paragraph-16 makes it clear that the Supreme Court was of the opinion that in the facts and circumstances of the said case, no offence was made out in the complaint petition. However, in the present case, this Court is satisfied that clear cut case is made out against this petitioner. Similarly, case of M/S Pepsi Foods Ltd. (Supra) is also not applicable in the facts and circumstances of the present case. The materials available on record of the case indicates that the complainant and his wife was cheated by the accused persons particularly the petitioner no.1, who was Post Master of the concerned Post - 11 - Office. Against him, there was specific allegation that the complainant was cheated by way of illegally with holding the amount of the money order. It was further alleged in the complaint petition that it was not an isolated case, but he has stated in the complaint petition that in the village in question, several other persons were cheated in similar manner by the official of the Post Office concerned. 8. In view of the facts and circumstances mentioned hereinabove, I am of the view that learned Magistrate, while taking cognizance of the offence by its order dated 23.11.1996, has committed no error. 9. There is no merit in this petition and petition stands rejected. 10. In this case, by order dated 14.1.1998, while issuing notice to opposite party no.2, this Court had directed that in the meantime, further proceedings in Complaint Case No.1182 of 1996 pending in the court of Sri Om Prakash, Judicial Magistrate, Ist Class, Siwan shall remain stayed. Subsequently, by order dated 20.4.1998, this application was admitted - 12 - PATNA HIGH COURT Dated 31.3.2010 N.A.F.R./N.H. for hearing. While admitting the case, this Court directed that during the pendency of this application, interim order dated 14.1.1998 shall continue. The stay order is continuing. 11. In view of rejection of this petition, interim order of stay stands automatically vacated. 12. Let this order be communicated to the court below forthwith. ( Rakesh Kumar,J.)