IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34256 of 2011 Amrendra Rai son of late Chandradeo Rai, Resident of village-Kurshandi, Block-Puraini, District-Madhepura. Versus The State of Bihar ----------- 2. 13.10.2011. Heard learned counsel for the petitioner and learned counsel for the State. The present application has been filed for quashing of the order dated 28.6.2010 passed by Sub. Divisional Judicial Magistrate, Purnia in Purani P.S. Case No.95 of 2009 (G.R. No.1913 of 2009) whereby and whereunder cognizance of the offence under section 406, 409 and 420 of the Indian Penal Code has been taken and the petitioner has been summoned to appear before the court. The court below, while summoning the petitioner, has taken into account the first information report, case diary and chargesheet. There is allegation of entrustment of food grains to the petitioner, who was a dealer under public distribution system. The stock of rice was delivered to him under food for work and other such programmes. The allegation is that neither the food grains have been distributed nor the same has been returned. Learned counsel for the petitioner submits that though he has received food grains as alleged but there was no distribution order. The rice was entrusted to him in the year 2007. In the meanwhile, there was devastating flood and the rice which is a perishable commodity has already been ruined. There was no criminal mens rea on the part of the petitioner. The petitioner was 2 not given any opportunity of being heard before institution of first information report. Having heard I am of the view that that the learned Magistrate on the basis of materials available on record has found a prima facie case against the petitioner and has taken cognizance of the offence. I find no illegality in the order. At the stage of taking cognizance defence of the petitioner cannot be looked into. The petitioner has tried to persuade the court by referring to various documents that the case has maliciously been instituted against him. The law is well settled in this regard. At the stage of cognizance an accused has no locus to present his defence. In the result finding no illegality in the order, the present application is dismissed. Md.S. ( Ashwani Kumar Singh, J.)