CRIMINAL MISCELLANEOUS No.7188 OF 2001 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- NAGENDRA KUMAR son of Ram Swarat Singh, Resident of west of College of Commerce, Gate No.16, P.S.-Lohiyanagar Kankerbagh, P.S.-Patrakarnagar, Patna …….. ……..Petitioner Versus 1.STATE OF BIHAR 2.Neelam Kumari W/o late Nagendra Kumar C/o Magadh Pustak Bhawan near College of Commerce, Gate No.16, P.O.-Lohiyanagar, Kankerbagh, P.S.-Patrakarnagar, Dist.-Patna ……. ……Opp.Parties ------- For the petitioner: Mr.Ajit Kumar Mr.Shailendra Kumar For the State: Mrs. Indu Bala Pandey, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 23.9.1997 passed in Complaint Case No.1367C of 1996 by Judicial Magistrate, Ist Class, Patna. By the said order the learned Magistrate has taken cognizance of the offences under sections 467, 468, 420, 406 and 120B of the Indian Penal Code. 2. Short fact of the case is that one Nagendra Kumar filed a complaint in the court of Chief Judicial Magistrate, Patna arraying (i) The Manager, M/s PCS Data Products Limited, Bombay (ii) The Branch Manager, Punjab National Bank, Kankerbagh, Patna and (iii) this petitioner, who is also having same name i.e. Nagendra Kumar as accused. It was disclosed in the complaint petition that he with a view to purchase ten debentures had applied to PCS Data Product limited (accused 2 no.1) for total amount of Rs.1,000/-. It was asserted that he did not receive allotment of debentures despite deposit of the amount in the Punjab National Bank, Kankerbagh Branch, Patna through cheque no. 268132 dated 16.7.1992. The complainant requested accused no.1 for refund of Rs.1,000/- which was sent by him to the company. Subsequently, it transpired that the allotment was already sent in the name of the complainant and the same was also encashed through Kankerbagh Branch of the Punjab National Bank. The complainant tried to get the account number in which the said amount was credited but the bank did not provide the same. However, the complainant subsequently noticed that the amount sent by accused no.1 was deposited in the account of the petitioner and the same was encashed. On the aforesaid allegation, a complaint was filed and the learned Magistrate after conducting enquiry, by the impugned order dated 23.9.1997 took cognizance of the offences under sections 420, 467, 468, 406 and 120B of the Indian Penal Code and directed for summoning the accused persons. 3. Aggrieved with the order of cognizance, the petitioner approached this court by filing the present petition. This court on 14.2.2002 directed for issuance of notice to opposite party no.2 and it was directed that until further orders, further proceedings in the court below with regard to the petitioner, Nagendra Kumar, shall remain stayed and the case was finally admitted on 28.11.2002. 4. Mr.Ajit Kumar, learned counsel appearing on behalf of the petitioner, while challenging the impugned order, 3 submits that on perusal of the complaint petition no offence is made out. It was submitted that it is true that refund advice was received by the petitioner but there was no intention to commit any crime. It was submitted that from time to time the petitioner was investing for the purpose of obtaining debentures. Learned counsel has referred to annexure-2 series which include a copy of refund advice in question. It was submitted that refund advice which has been claimed by the complainant was addressed in the name of the petitioner and it was delivered by the postal department to the address mentioned in the refund advice. Since the petitioner was regularly investing, due to over sight he received refund advice which was addressed to him and it was deposited in the account also. Learned counsel has also referred to annexure-2 to the petition which is a photo copy of the Bank A/c No.2342 in the name of the petitioner. It was submitted that the petitioner was regularly transacting through the aforesaid bank account. Had there been any intention to commit fraud, the petitioner would not have deposited the refund advice in his own account. It was further submitted that after noticing the mistake, the petitioner volunteered to refund the said amount with interest but the same was refused by the complainant and even his daughter Neelam Kumari, who has been substituted as opposite party no.2. It was submitted that record does not show any intention to commit fraud by the petitioner. It was further submitted that the petitioner for such a meagre amount has already suffered a lot due to the reason that the case was instituted in the year 1996 and since then the matter is pending. Accordingly, 4 Patna High Court The 19th August,2010 Md.S./NAFR prayer has been made to quash the order of cognizance. 5. I have also heard Mrs. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State . 6. Besides hearing learned counsel for the petitioner and the State, I have also perused the materials available on the record. The court is satisfied that there was no intention on the part of the petitioner to commit the fraud. The name of the complainant was also the same which was the name of the petitioner and both were residing almost in the same locality and if due to mistake the petitioner had received refund advice, it cannot be said that the petitioner was having any intention to commit fraud. It is further evident that from time to time the petitioner was investing for debentures and, as such, there was every possibility that he over looked genuineness while receiving the refund advice. As such, it cannot be said that the petitioner had committed any offence. It can be considered as a bona fide mistake for which he cannot be penalized in pursuing the case for such a long time. The court is satisfied that it is a fit case for exercising inherent power in favour of the petitioner. 7. Accordingly, order of cognizance dated 23.9.1997 passed in Complaint Case No.1367C of 1996 by learned Judicial Magistrate, Ist Class, Patna is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)