IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11826 of 2008 KAMALDEO NARAYAN PRATAP SON OF LATE KRISHNA NAND CHOUDHARY, PROPRIETOR OF M/S CHOUDHARY CONSULTANCY SERVICE, GANESH MARKET, G.T. ROAD, SASARAM, ROHTAS. Versus 1. THE STATE OF BIHAR 2. RAM BACHAN SINGH, SON OF LATE JAGDEO SINGH, RESIDENT OF A, GAJRARH, GOURAKSHANI, P.S.- SASARAM, DISTRICT- ROHTAS. For the petitioner : Mr. D.K Sinha, Sr. Advocate For the O.P. : Mr. Rohit Kumar, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ----------- 4 15.11.2010 Heard learned counsel for the petitioner and the opposite parties. Petitioner is aggrieved by order dated 22.9.2007 passed in Complaint Case no. 226/2007 whereby on a consideration of the materials brought on record in course of inquiry, cognizance has been taken under Sections 406 and 120B of the Indian Penal Code by the Judicial Magistrate, 1st Class, Sasaram. It appears from the record that the petitioner along with one Birendra Mansukhani, Manager, Mansukh Securities and Finance Ltd. was made accuseds. Petitioner is only before this Court. While assailing the impugned order, Learned counsel for the petitioner relied upon the averments made in the complaint itself in an effort to show that it was a business transaction entered into between the accused including the 2 petitioner and the complainant and his wife. It appears that in course of sale/purchase of stocks/shares, the complainant did not get profit/amount as per his expectations. It is contended that the rest of the amount received by him through cheque in his name have since been returned to the complainant. Learned counsel has referred to the documents enclosed along with the counter affidavit in order to support the aforesaid contention. It is the stand of the petitioner that if there is a business transaction between the parties then resort to criminal proceeding would be abuse of the process of the Court. Learned counsel for the petitioner has relied upon the following judgments: (i) A.I.R. 2006 S.C. 2780 in the case of M/S Indian Oil Corporation versus M/S NEPC India Ltd. and Ors. (ii) 2009 (3) S.C.C. 375 in the case of Sharon Michel and Ors versus State of T.N. & Anr. Learned counsel appearing on behalf of the opposite party on the other hand heavily relied on paragraph no. 2 of the complaint read along with Annexure-3 and 4 of the counter affidavit in order to show that misrepresentation was made to him by the petitioner that he is registered sub-broker under accused no. 2 namely Birendra Mansukhani. From the materials placed on record, it appears that cheques were issued in the name of the petitioner and credited in 3 his account. It further appears from the record that petitioner is admittedly not a registered sub-broker/agent authorized to transact in the said field by the National Stock Exchange. It further appears from the record that the complainant could have approached the Securities and Exchange Board of India (SEBI) against the financial irregularity, if any, committed by the petitioner but from communications contained at Annexures-3 and 4 of the counter affidavit, it is evident that the petitioner was not found a registered sub-broker of the Board. In that situation, his complaint with the Board seems to have not been entertained. This Court takes into account two aspects of the matter. Firstly, from the complaint, this much is evident that misrepresentation was made by the petitioner as a result whereof he received certain amount through cheque in his name. Secondly, one of the accuseds of the complaint has not approached the Court and has thus accepted the order impugned and is facing the proceeding. Having regard to these facts and conclusions, this Court is not inclined to interfere with the impugned order. The application is accordingly dismissed. This Court, however, observes that any finding/observation made hereinabove are for the purpose of disposing of the present application seeking quashment of the proceeding at its initial stage.. It shall be open to the petitioner to agitate/raise all the issues/grievances at the relevant stage of the 4 proceeding which, once raised, shall be considered and disposed of in accordance with law uninfluenced by the present order. pkj ( Kishore K. Mandal, J. )