IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.46895 of 2005 AJAY KUMAR son of N.C.Shukla, resident of Jai Prakash Gali, East Lohanipur, P.S.-Kadamkuan, Dist.-Patna Versus 1.STATE OF BIHAR 2.Jai Mani Kumari wife of Rama Kant Rai. resident of village- Chilhai,P.S.-Teghra, Dist.-Begusarai. ----------- For the petitioner: Mr.Rajiv Ranjan Sinha For the State: Mr.Jhaarkhandi Upadhyay For opposite Party no.2: Mr.Pramod Kumar Singh and Mr.Binod Kumar No.2. ----------- 7. 18.2.2010. Heard Mr.Rajiv Ranjan Sinha, learned counsel for the petitioner and Mr. Pramod Kumar Singh, learned counsel for the opposite party. The petitioner by filing this petition has questioned the order dated 30.4.2004 whereby Judicial Magistrate, Ist Class, Patna, had taken cognizance of the offences under sections 403 and 418 of the Indian in Complaint Case No.548( c) of the Indian Penal Code. Learned counsel for the petitioner while pressing the petition argued that the case is barred by limitation under section 468 of the Cr.P.C. Learned counsel also referred a decision of the Supreme Court reported in 2005(1) SCC 122, Zandu Pharmaceutical Works Ltd. and Ors. Vs. Mohd. Sharaful Haque and another. Learned counsel referring the complaint petition submitted that in paragraph-4 the complainant himself had admitted that payment to the society in question was made between 3.5.1986 and 20.4.1991. Accordingly, he submits that it is barred by limitation and the learned Magistrate has committed 2 grave error in taking cognizance of the offence without any explanation in respect of delay being given by the complainant. Learned counsel appearing for opposite party no.2, Mr.Pramod Kumar Singh, while controverting the argument of learned counsel for the petitioner, submitted that it is true that payment was made in between 1986 and 1991 but the complainant was given assurance that the land in question will be allotted to her immediately and lastly when the complainant felt that she has been deceived only then she filed a complaint petition before the court below. He submits that cause of action arose when commission of offence was noticed. In the complaint petition besides co-operative i.e. M/s Finance Department Employees House Construction Co- operative Society Ltd, Patna, four others were named as accused persons i.e. Naresh Chandra Shukla, Nipendra Chandra Ghosh, Ajay Kumar(petitioner) and Sanjit Kumar Ghosh. Learned counsel also, while referring the petition, submitted that the petitioner is none-else but son of Naresh Chandra Shukla (accused no.1) who was ex-president of the said Society. Learned counsel for the petitioner had taken second ground for challenging the quashing order that he was elected as Secretary of the Society only in the year 1993 and, as per the complaint case, payment was made prior to the date he assumed charge as a Secretary and, as such, in any event, he cannot be held responsible for the transaction which was held prior to his joining. Learned counsel for the complainant on this stand of 3 the petitioner submitted that the Society is being run by the family members of the petitioner. Earlier, father of the petitioner was Secretary of the Society when transaction had taken place. The complainant resides away from the Society in question and only when she came to the conclusion that she had been deceived, the complaint petition was filed. Now coming to the judgment of the Supreme Court, I may indicate that the fact of the said was entirely different. In the said case the complainant was appointed on the post of Field Officer in Zandu Pharmaceutical Works Ltd. though he was given assurance or he was interviewed for the post of Area Manager. On that very ground the complainant of that case had filed a case for the offence under section 406 and 409 of the Indian Penal Code. It is true that while entertaining a petition, the period of limitation is to be looked into, the fact remains that in the present case the offence was in continuity till the date of filing of the complaint petition and only when she felt that she was deceived, though she had already made payment to the Society which is being run by the family members of the petitioner, she had filed the present complaint petition. It need not to be elaborated that while exercising power conferred under section 482 of the Criminal Procedure Code, the court has to be very cautious. Time without number the Hon’ble Supreme Court has said that this power is to be exercised in rarest of the rare case. Similarly, on the point of considering cognizance 4 it is also settled that while taking cognizance a court is required to peruse the materials on record and after being satisfied that prima facie case is made out, the court is well competent to take cognizance of the offence. In the case of State of Maharashtra Vs. Som Nath Thapa (1996 Cri. L.J.2448) the Hon’ble Supreme Court has made it clear that if there is ground for presuming that the accused has committed the offence, a court can justiciably say that a prima facie case against him exists. Since, while taking cognizance the learned court below had already examined materials on record as well as statement of complainant on solemn affirmation and the deposition of witnesses, the court has not committed any error. I do not find any illegality or irregularity in the order of taking cognizance. I may indicate that in the Code of Criminal Procedure there are several provisions which entitles an accused to agitate his grievance and apprise the court at an appropriate stage. If there is already remedy available in the Code of Criminal Procedure, it is advisable for the court to be loath while hearing a petition under section 482 of the Code of Criminal Procedure. This power is to be exercised in very exceptional cases. After examining the materials available on the record of the present case, I do feel that this case cannot be brought in the category of rarest of the rate cases. Therefore, I do not find any merit in the present case and the petition stands dismissed. Md.S. ( Rakesh Kumar, J.)