CRIMINAL MISCELLANEOUS No.36174 OF 2000 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- SANJAY KUMAR son of Sri Tej Narayan Singh, Resident of village-Belbanwa, P.S.-Motihari, Town & District-Motihari(East Champaran) ….. …..Petitioner Versus 1.STATE OF BIHAR 2.Ashok Leyland Finance, 607,Lav Kush Tower Exhibition Road, Patna, P.S.-Gandhi Maidan District-Patna ……. …….Opp.Parties. ------- For the petitioner: Mr.Sarvadeo Singh, Mr.Sanjay Kumar For the Opp. Party No.2: Mr. Akhileshwar Prasad Singh Mr.Partha Sarthy. For the State:Mr.B.P.Singh, 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 22.1.2000 passed by A.N.Upadhyay, Judicial Magistrate, Ist Class, Patna in Complaint Case No.1334C of 1999 (Trial No.314 of 1999). By the said order, the learned Magistrate has taken cognizance of the offences under sections 406 and 420 of the Indian Penal Code. 2. Short fact of the case is that opposite party no.2- M/s Ashok Leyland Finance Ltd. through its Area Branch Manager, Exhibition Road, Patna filed a complaint which was registered as Complaint Case No.1334C of 1999 in the court of Chief Judicial Magistrate, Patna disclosing therein that the petitioner was engaged in business of financing for Motor 2 Vehicles of various makes. It was alleged that the petitioner approached its branch office at patna for the purpose of purchasing a Tata Sumo on hire purchase basis. It was alleged that the petitioner also introduced one Piyush Ranjan Sinha as a guarantor. It was assured by the petitioner that monthly instalment on hire purchase basis will be paid regularly and relying on the assurance and promise of the petitioner, an agreement was entered in between the petitioner and the complainant for purchase of a Tata Sumo bearing registration no.BR 05A-P9211 fitted with chasis bearing no.3850035 5Q 932789 and engine no.483 D241 45Q 787029. It was alleged in the complaint that after making payment of only few instalments, the petitioner stopped clearance of any instalment. On enquiry conducted by the complainant, the complainant felt that the petitioner might have sold the vehicle in question. In para-10 of the petition, it was categorically stated “That the complainant had tried his best to get the where-about of the vehicle through his Field Officer who reported that vehicle is not traceable and whenever he tried to contact the accused persons he behaves in a very uncalled for manner. The complainant has every apprehensions that the accused persons have either sold the vehicle or have dismantled it in contravention of the terms of the agreement.” After filing of the complaint petition, an enquiry was conducted and, thereafter, by the impugned order the learned Magistrate on being satisfied that prima facie case was made out passed order of cognizance by its order dated 22.1.2000. 3 3. Aggrieved with the order of cognizance, the petitioner approached this court by filing the present petition. Since on behalf of the petitioner a stand was taken that he is prepared to pay the balance instalments as per agreement, this court directed for issuance of notice to opposite party no.2 by its order dated 17.4.2000. Again on 28.10.2002, time was taken on behalf of the petitioner so that the petitioner may approach the opposite party no.2 for settlement and compromise by paying lawful dues. Finally, the case was admitted on 29.4.2003 and while admitting the case, this court directed that during the pendency of this application, further proceeding in Complaint Case No.1334C of 1999 (Trial No.314 of 1999) pending in the court of Sri A.N.Upadhyay, Judicial Magistrate, Ist Class, Patna shall remain stayed and order of stay is still continuing. 4. Mr.Sarvadeo Singh, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance has raised several grounds. It was firstly submitted that from the complaint itself it is evident that no offence is made out. It was argued that whatever thing was done, was done in business transaction. It was submitted that the petitioner had altogether made a payment of Rs.1,63,000/- and, as such, it cannot be said that there was any intention of the petitioner to cheat the complainant. It was submitted that in absence of any intention of cheating, the learned Magistrate was not required to proceed with the case and take cognizance of the offences under sections 406 and 420 of the Indian Penal Code. Learned counsel 4 for the petitioner has relied upon several judgments of this court as well as Hon’ble Supreme Court. He has firstly referred to a case reported in 2010(2) PLJR 1043 (Ice Berg Industries Ltd. Vs. State of Bihar), particularly he has referred to paragraph-10 of the judgment. It was submitted that this court had interfered with the criminal proceeding on the ground that no dishonest intention was shown by the complainant in the said case. Learned counsel for the petitioner has further relied on a judgment reported in 2010(1) PLJR 448 (Niranjan Kumar Modi Vs. State of Bihar). It was submitted that in the said case the court had interfered with the order due to the reason that some payment was made by the accused. Learned counsel for the petitioner further argued that after order of cognizance, the complainant himself had initiated an arbitration proceeding and whatever due is there, that will be settled in the arbitration proceeding. Accordingly, he submits that a criminal proceeding, in the present case, appears to be unwarranted. Learned counsel has also argued that at subsequent stage the vehicle in question was taken over by the complainant. On the aforesaid grounds, learned counsel for the petitioner has submitted that the order of cognizance and the entire criminal proceedings against the petitioner, is liable to be set aside since it was an abuse of process of the court. 5. Mr.Akhileshwar Prasad Singh, learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioner. It was submitted by him that right from the very beginning the intention of the petitioner was 5 to cheat the complainant and due to that reason the petitioner had brought a persons as a guarantor, who was virtually non-existent. Learned counsel has referred to para-4 of annexure-B to the counter affidavit dated 17.4.2003 and pointedly argued that one of the witnesses has deposed at the time of enquiry that the complainant wanted to contact the guarantor on the given address along with photograph. After perusing the photograph of the concerned guarantor it was intimated that the same person was Prakash Kumar Asthana and, as such it was argued that Prakash Kumar Asthana was introduced as a guarantor by the petitioner in the name of Piyush Ranjan Sinha. It was submitted that this shows that even before entering into hire purchase agreement, the intention of the petitioner was one way or the other to cheat the complainant. This shows dishonest intention on the part of the petitioner. It was further submitted that the petitioner though made initial deposit and thereafter cleared about three instalments, he stopped payment dishonestly. 6. In this case Mr.B.P.Singh, learned Addl. Public Prosecutor has appeared on behalf of the State. He adopted the argument advanced by Mr. Akhileshwar Prasad Singh, learned counsel for the opposite party no.2. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record particularly annexure-B to the counter affidavit filed on behalf of opposite party no.2. I have also perused the earlier order. From the earlier order dated 17.4.2002 it is evident that an assurance was given 6 Patna High Court The 3rd August,2010 Md.S./NAFR. on behalf of the petitioner regarding clearance of the balance amount and due to that reason direction was given to issue notice to opposite party no.2. Even at subsequent stage time was taken on the same ground. This shows that the petitioner had not approached this court with clean hand. So far as the judgment referred to by learned counsel appearing on behalf of the petitioner is concerned, there is no dispute on the question of law but so far as fact of the present case is concerned, this court is satisfied that there were sufficient materials before the learned Magistrate to proceed with the case. I am of the view that that this is not a fit case for exercising inherent power in favour of the petitioner. Accordingly, the petition stands rejected. 8. In view of rejection of this petition, the interim order of stay dated 29.4.2003 stands automatically vacated. Let a copy of this order be sent to the court below forthwith. (Rakesh Kumar,J.)