IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48113 of 2007 BHOLA NATH DUBEY …PETITIONER Versus 1. STATE OF BIHAR 2. M/S U.S.V.LTD. JAGAT NARAIN ROAD, WEST OF PANITANKI KADAMKUAN PATNA OPPOSITE PARTIES For the Petitioner: Mr.Satish kr. Sinha For the State : Mr.J. Upadhyay,APP ----------- 06. 06.09.2010 Heard counsel for the parties. Petitioner challenges the order dated 15.12.2006, passed by learned Judicial Magistrate 1st Class, Patna in Complaint Case No.1206 (c) of 2005, whereby based on enquiry made under section 202 Cr. P.C. cognizance under sections 407 and 420 IPC has been taken. The petitioner runs a transport agency in the name and style of Sunrise Transport Corporation. The complainant deals in medicines as a wholesale dealer. As per the allegation in the complaint, certain consignments of medicine were booked for delivery at Araria. The consignments did not reach the destination. Another consignment was also entrusted to the petitioner after a month. The same also did not reach the consignee at Araria. A legal notice was served on the petitioner whereafter the complaint was lodged. Learned trial court has taken cognizance based on materials adduced on behalf of the complainant in course of enquiry. Learned counsel for the petitioner submits that an FIR under section 379 IPC was promptly lodged by the driver(s) 2 of the two transporting vehicle in relation to the theft of the consignments. Annexures-1 and 3 are the FIRs lodged by the driver(s) of the truck(s) which was/were carrying the consignments. It is the case of the petitioner that a thorough investigation was made by the Investigating Officer for both the two cases whereafter a final report was submitted wherein the case was found true, but it was observed there is no clue. Relevant statement in this connection has been made in paragraph 11. Annexure-7 is the final report submitted by the police. It appears that the complainant waited for close to three years before lodging the present prosecution which was instituted on 15.12.2006. It is submitted that on the same set of facts another case lodged against the present petitioner was quashed by a Bench of this Court by order dated 15.01.2007 passed in Cr. Misc. No.23171 of 2005 (Annexure-9). I have gone through the aforesaid order. It appears that reliance was placed on the first information report lodged by the driver/transporter which was found substantiated in course of investigation. It further appears that the delay caused in lodging the complaint also weighed with this Court while granting relief to the petitioner. Learned counsel for the petitioner submits that the present case may also be allowed in view of the reasonings assigned in the said order. Learned APP, on the other hand, submits that at the initial stage of the proceeding, this matter may not be taken into consideration. 3 I have considered the submissions advanced on behalf of the parties. From the records it is definitely apparent that the complainant waited for more than three years before approaching the court below by filing the complaint. It is also apparent from records that with regard to the theft of part of the consignments of the petitioner’s transport company, FIR was promptly lodged by the driver which was on investigation found substantiated but no person could be booked by the Investigating Officer. These are the reasonings assigned by a Bench of this Court in the order placed at Annexure-9. Thus, on facts the case of the petitioner is similarly circumstanced. In spite of service of notice, nobody has appeared on behalf of the complainant to oppose the present application. Let it be recorded that this matter was earlier also heard but the same was adjourned as nobody had appeared on behalf of o.p.no.2. In view of these circumstances appearing from records, I am persuaded to allow the present application for the reasons assigned in the order dated 15.01.2007 (Annexure-9). The application is allowed. The impugned order dated 15.12.2006 is quashed and set aside. hr ( Kishore K. Mandal )