CRIMINAL MISCELLINEOUS No.-5426 of 2007 In the matter of an application under Section 482 of the Code of Criminal Procedure. ……….. Ramesh Kumar Sinha, son of late Baidya Nath Prasad Sinha, resident of Mandiri (north) P.S. Budha Colony, district- Patna. ………Petitioner/Appellant Versus 1. State of Bihar. 2. Sri Ashwini Kumar Sinha, son of late Bhuneshwar Prasad Sinha, resident of Sinha Niwas, north Mandiri, P.S.-Budha Colony, District- Patna. ……….Oppospite Parties/Respondents …………. For the Petitioner : Mr. Ashwini Kr. Sinha, Advocate Mr. Binod Kumar, Advocate For the State : Mrs. Indu Bala Pandey, A.P.P. For the O.P. : Mr. Vishnudeo Narayan ………….. PRESENT THE HON’BLE MR. JUSTICE RAKESH KUMAR ----------- Rakesh Kumar, J. The sole petitioner has approached this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 24.12.2002 passed by learned Judicial Magistrate, Ist Class, Patna in Complaint Case no. 1123(C) of 2002. By the said order learned Magistrate has taken cognizance of offences under Sections 406 and 420 of the Indian Penal Code. The short fact of this case is that opposite party no. 2 filed a complaint in the Court of Chief Judicial Magistrate, Patna, which was numbered as Complaint Case No. 1123(C) of 2002 arraying the petitioner as sole accused on an accusation of commission of offence under Sections 406 and 420 of the Indian Penal Code. It was disclosed in the complaint petition that the petitioner in collusion with someone had filed a writ petition for 2 payment of compensation amount in Land Acquisition Case. It was alleged that the petitioner without informing the complainant or impleading him as party had filed a writ petition vide C.W.J.C. No. 2991 of 2002. It was alleged that petitioner had suppressed the fact and thereafter he persuaded this Court to pass a favourable order. In the light of order of this Court, the petitioner received the entire amount of award/ compensation amount despite the fact that the complainant was also having his share in the said compensation amount. After filing the complaint, an enquiry was conducted and thereafter by the impugned order learned Magistrate has taken cognizance of the offence under Sections 406 and 420 of the Indian Penal Code. Learned counsel appearing on behalf of the petitioner submits that the learned Magistrate has committed grave error while entertaining the complaint petition and taking cognizance of the offences as alleged by the opposite party no. 2. It was submitted that whatever amount of compensation was received by the petitioner, it was received pursuant to the direction of this Court. It has further been submitted that whether the allegation regarding the concealment or suppression of fact in writ petition before this Court was true or not, can be examined only as per direction of this Court. It has been submitted that in the present case no direction was given by this Court for either conducting an enquiry under Section 340 of the Code of Criminal Procedure or for filing a complaint petition. In absence of any direction issued by this Court, it cannot be said that the petitioner had committed any offence either under Sections 406 and 420 of the 3 Indian Penal Code. Accordingly, it has been prayed to set aside the impugned order. Shri Vishnudeo Narayan, learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioner. He has referred to number of documents enclosed with the counter affidavit which has been filed on behalf of O.P. No. 2. It was submitted that even in the year 1983 itself, the petitioner had executed an indemnity bond in which he had claimed his own share out of the compensation amount. However, subsequently by suppressing facts, the petitioner filed a writ petition and got a favourlable order and thereafter he had received the entire amount of compensation. Accordingly it was submitted that the learned Magistrate has rightly taken cognizance of the offence. He submits that it is a specific case of commission of offence under Sections 406 and 420 of the Indian Penal Code. I have also heard Smt. Indu Bala Pandey learned Additional Public Prosecutor for the State. Besides hearing learned counsel for the parties, I have also perused the materials available on record. From the content of the complaint petition, it is evident that the allegation was made by the complainant that the petitioner has made suppression/concealment of fact in a writ petition and thereafter, he persuaded this Court for passing favourable order. It appears that in compliance of the direction of this court issued in C.W.J.C. No. 2991 of 2002 the petitioner received the compensation amount. Since the petitioner had taken compensation amount in compliance with the order of this 4 Court which has not been unsettled till date, it is difficult to conceive as to how it can be alleged that petitioner had committed offence of criminal breach of trust or the offence of cheating without any adjudication or direction of this Court. It was not advisable for the learned Magistrate to proceed with the complaint filed by opposite party no. 2 and taking cognizance. The court is of the opinion that it is a fit case for exercising inherent jurisdiction in favour of the petitioner. Accordingly, the order dated 24.12.2002 passed in Complaint Case No. 1123 (C) of 2002 by the learned Magistrate Ist Class, Patna is hereby set aside and the petition stands allowed. It goes without saying that rejection of this petition will not preclude opposite party no. 2 to avail other remedy. Patna High Court The 18th November,2010 Amit/NAFR. ( Rakesh Kumar, J )