CRIMINAL MISCELLANEOUS No.12375 OF 2000 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.VINOD KUMAR KEDIA 2.Arun Kumar Kedia Both sons of Rama Prasad Kedia, resident of Radha Krishna Niwas, Sikandarpore, P.S.-Kotwali, Dist.-Muzaffarpur, at present R/o 80, Radhey Nagar, Athwa Lines, P.S.-Umra Surat, Dist.-Surat. 3.Indrajeet Kumar Choudhary @ Munna, son of Satrudhan Choudhary, resident of Radha Krishna Niwas, Sikandarpore, P.S.-Kotwali, Dist.-Muzaffarpur, at present R/o 80, Radhey Nagar, Athwa Lines, P.S.-Umra Surat, Dist.-Surat. ……. …….Petitioners Versus 1.STATE OF BIHAR 2.Baijnath Prasad, son of late Gopal Prasad, resident of village-Purani Godown Road, near Marwari Panchayati Dharamshala, P.S.-Kotwali, Dist.-Gaya …… ……Opp.Parties. ------- For the petitioners: Mr. D.N.Tiwari For the State: Mr. Ansarul Haque, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. Three petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 26.2.1998 passed by Sri Mahavir Kumar, Judicial Magistrate, Ist Class, Gaya in Complaint Case No.13 of 1998, Tr. No.244 of 1999. By the said order the learned Magistrate has taken cognizance of offences under sections 420, 406 and 504 of the Indian Penal Code The petitioners have also prayed for quashing of the order dated 26.2.1998 whereby the learned Magistrate has directed for issuance of summons to the petitioners. 2. Short fact of the case is that opposite party no.2 filed a Complaint vide Complaint Case No.13 of 1998 disclosing therein 2 that he was dealing in whole sale business of cloth in the name and style of Vijay Vastralaya in the district of Gaya. It was further disclosed that petitioner nos.1 and 2 were doing a business of merchant and commission agent in the name and style of Radha Krishna & Sons at Surat and petitioner no.3 was servant of petitioner nos.1 and 2. In course of business the petitioners had supplied cloths to the complainant. The complainant had given description of amount and draft numbers whereby payment was made to the petitioners by the complainant in respect of goods supplied to him by the accused persons. It has been stated by the complainant that despite the fact that entire amount was paid by the complainant, the accused persons by making forgery had further obtained Rs. 4083/- from the complainant and, as such, the accused persons, according the complainant, had committed offence under sections 420, 406 and 504 of the Indian Penal Code and on the aforesaid allegation the complaint petition was filed on 6.1.1998 in the court of Chief Judicial Magistrate, Gaya. The learned Magistrate after examining the complainant on solemn affirmation and two witnesses who were examined as enquiry witnesses passed order dated 26.2.1998 taking cognizance of the offences under sections 420, 406 and 504 of the Indian Penal Code. 2. Aggrieved with the order dated 26.2.1998 the petitioners approached this court by filing the present petition and this court by order dated 25.4.2001 while issuing notice to opposite party no.2 directed that till any order is passed at the admission stage, further proceeding of Complaint Case No.13 of 1998, Tr. No.244 of 3 1999 pending in the court of Sri Mahavir Kumar, Judicial Magistrate, Ist Class, Gaya, shall remain stayed. The complainant, thereafter, entered his appearance in the present case through his Advocate. Subsequently, on 21.8.2001 the case was admitted for hearing and it was directed that interim order dated 25.4.2001 shall continue till disposal of this application. 3. Mr.D.N.Tiwari, learned counsel appearing on behalf of the petitioners, while pressing the present petition, submits that the order of cognizance and entire criminal case vide Complaint Case No.13 of 1998 are liable to be set aside mainly on two grounds i.e (i) the present complaint petition filed by the complainant is malicious and (ii) from the contents of the complaint petition it is evident that no criminal offence is made out, rather allegation shows that it was a dispute of civil nature and, as such, the learned Magistrate was not required to proceed with the present complaint petition. Learned counsel for the petitioners further submits that the petitioners are resident of Gujarat and dealing with business of cloth and supplied cloth to the complainant through bill and invoices which has been mentioned in the complaint petition filed by the petitioners i.e. Special Criminal Case No.5836 of 1997 before the court of Judicial Magistrate at Surat. It was disclosed in the said complaint petition that under invoice Nos. 554 and 1124 the petitioners had delivered goods to the complainant worth Rs.54682/- and Rs.25,608/- respectively. Learned counsel for the petitioners has referred to page 26 of the brief which contains the name of Arun Kumar Kedia after verification in Special Criminal Case 5836 of 1997. It was argued that 4 after filing of the complaint at Surat summonses were issued to the complainant and it was received by the complainant on 20.11.1997. After receiving the summons in a case which was initiated by petitioner no.1, the complainant namely, Baijnath Prasad in a well designed manner, rather maliciously filed the present petition vide Complaint Case No.13 of 1998 on 6.1.1998. It was submitted that filing of the present complaint petition was a well designed method adopted by the complainant to avoid his prosecution in the case which was initiated by petitioner no.1. It has been submitted that the prosecution in the present case is a malicious prosecution and the same is liable to be set aside. It has also been submitted that contents of the complaint petition discloses that it was a dispute of civil nature. Accordingly, it has been prayed to quash the order of cognizance as well as entire criminal Proceeding in Complaint Case No.13 of 1998. 4. In this case despite the fact that opposite party no.2 had appeared through his counsel at the time of admission, he has preferred not to appear at the time of hearing of the present petition, though even at the hearing stage notice was issued. Mr. Ansarul Haque, learned Additional Public Prosecutor, has appeared on behalf of the State and has opposed the prayer of the petitioners. 5. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. On perusal of the complaint petition itself the court is satisfied that there was no sufficient material for proceeding with the case against the petitioners. The complainant himself has admitted that he was in a 5 business term with the petitioners. The bill number which has been mentioned by the petitioners in the case lodged before Surat Court prior to filing of the present complaint petition, corroborates that due to some business transaction dispute arose in between the parties and, as such, for such a dispute the complainant was not entitled to invoke court’s jurisdiction for initiating criminal proceeding against the petitioners. It is true that while hearing a petition under section 482 of the Code of Criminal Procedure this court is not required to look into document annexed with the petition unless same has been proved through process of law or the same is a public document. However, in view of peculiar facts and circumstances of the present case, I have perused the petition which was filed by the petitioners in the court of Judicial Magistrate at Surat which was numbered as Special Criminal Case No.5836 of 1997. The petition has been brought on record as annexure-3 to the petition and it also appears that it was a photo copy of true copy of the complaint petition. Perusal of annexure-3 makes it clear that much prior to the filing of the present petition by opposite party no.2 at least petitioner no.1 had already filed a case before Surat court and same invoice number was mentioned which was mentioned by the complainant in the present case. The court is satisfied that the present petition was not filed by the complainant i.e. opposite party no.2 with fair and honest intention, rather it can be said that the same was filed with an oblique motive and allowing such prosecution to proceed will amount to allowing abuse of process of the court. With a view to prevent the abuse of process of the court, this court is inclined to quash the order of cognizance dated 26.2.1998 passed by learned 6 Patna High Court The 12th July, 2010. Md.S./NAFR Magistrate, Gaya in Complaint Case No. 13 of 1998. 6. Accordingly, the order of cognizance dated 26.2.1998 passed by Sri Mahavir Kumar, Judicial Magistrate. Ist Class, Gaya, in Complaint Case No.13 of 1998 is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)