CRIMINAL MISCELLANIOUS No. 20484 OF 2000 ----- In the matter of an application under Section 482 of the Code of Criminal Procedure. ----- BRAJ BHUSHAN JAISWAL @ BRAJ BHUSHAN PRASAD JAISWAL SON OF LATE SHEOJEE PRASAD SAH, RESIDENT OF VILLAGE PAKRIDAYAL, P.S.PAKRIDAYAL, DIST.-EAST CHAMPARAN ------- PETITIONER VERSUS 1. THE STATE OF BIHAR 2. SHYAM SUNDER AGRAWAL SON OF NAGARMAL AGRAWAL RESIDENT OF BANK ROAD, SUTAPATTI,P.S.MUZAFFARPUR TOWN, DISTRICT MUZAFFARPUR --------- OPP.PARTIES ------ For the petitioner : M/s Rajendra Narain, Anju Narain, Binod Kumar Mishra, Vishal Samash, Umashankar Verma and Sanjay Kumar Srivastava For the State : Mr. Damodar Pd.Tiwary, 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 Criminal Procedure Code, has prayed for quashing of an order dated 19.06.2000 passed by learned Judicial Magistrate, Muzaffarpur in Complaint Case No 1019 of 2000. By the said order, the learned Magistrate has taken cognizance of the offence under Section 406 of the Indian Penal Code. 2. Short fact of the case is that on 27.05.2000, opposite party No 2 filed a complaint vide complaint case No 1019 of 2000 in the Court of Chief Judicial Magistrate, Muzaffarpur disclosing therein that the complainant was running a retail shop of cloths in the name and style of Deepak Enterprises. The petitioner, who was a merchant, had taken cloths from the complainant worth Rs 33,887.40P on 07.02.1996. The cloths 2 were entrusted to the petitioner with an understanding that after sale of the same, the sale proceed after deducting some amount will be refunded to the complainant. It was alleged that the petitioner refunded only Rs.19,250/- on different dates out of the sale proceeds. However, with dishonest intention, he neither returned the remaining amount of Rs.14,637/- nor returned the cloth equivalent to the said amount. On the aforesaid allegation, the complaint petition was filed against the petitioner under Sections 406, 409 and 420 of Indian Penal Code. After conducting enquiry, the learned Magistrate by its order dated 19.06.2000 took cognizance of the offence under Section 406 of Indian Penal Code and directed for summoning the petitioner. 3. ggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 21.08.2001, while issuing notice to opposite party No 2, this Court directed that in the meantime, further proceeding in complaint case No 1019 of 2000 pending in the Court of Judicial Magistrate, Muzaffarpur shall remain stayed against the petitioner. Thereafter, on 13.02.2000, the case was admitted for hearing and it was directed that during the pendency of the application, interim order dated 21.08.2001 shall remain operative. Despite service of notice on opposite party No 2, he has not preferred to appear in the present case either in person or through counsel. 4. Mr Rajendra Narain, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, has argued that this case is fit to be set aside on two counts. Firstly, it was submitted that order of cognizance was grossly barred under Section 468 (2) (c) of Code of Criminal Procedure. It was submitted that for the 3 offence under Section 406 of Indian Penal Code, maximum punishment prescribed is imprisonment for three years or fine or both. Accordingly, it was submitted that in view of the provision under Section 468 (2) (c) of the Code of Criminal procedure, maximum period of limitation to file complaint would be three years from the date of occurrence. It was argued that the complainant himself has admitted in the complaint petition that occurrence had taken place on 07.02.1996 and the complaint was filed on 27.05.2000 which was itself beyond the period of limitation. Learned counsel for the petitioner further submitted that even the complainant had not filed any petition for condonation of delay. However, learned Magistrate without any prayer made by the complainant for condonation of delay, after expiry of the period of limitation has passed the order of cognizance which, according to the learned counsel for the petitioner, is illegal and is liable to be set aside. The second ground for challenging the order of cognizance is that content of the complaint petition does not make out a case under Section 406 of Indian Penal Code. It was submitted that hardly it can be said that it was a dispute of accountancy and had there been any amount due, the complainant was entitled to get the amount recovered through approaching appropriate forum. The complainant was not entitled to invoke criminal jurisdiction of the court below with a view to get the amount recovered. Accordingly, it was submitted that the allegation made in the complaint petition appears to be civil in nature and for such an allegation, criminal proceeding cannot be allowed to proceed. Accordingly, it has been prayed to quash the order of cognizance and the entire proceeding. 4 5. Mr Damodar Prasad Tiwary, learned Additional Public Prosecutor appearing on behalf of the State, has opposed the prayer of petitioner, though the complainant, who was opposite party No 2 has chosen not to appear in the present case. It was submitted that question of limitation can be examined by the concerned Court where the proceeding is pending. It was submitted that the same question may not be looked into by this Court while hearing a petition under Section 482 of Criminal Procedure Code. Accordingly, he has prayed for rejection of the present petition. 6. Besides hearing learned counsel for the parties, I have also perused the materials on record. On perusal of the complaint petition, this Court is satisfied that allegation made in the complaint petition was not sufficient for initiation of criminal prosecution. It appears from the complaint petition that it was hardly a dispute of civil nature and for such dispute, the learned Magistrate was not required to proceed with the case and to pass order of cognizance. Besides merit of the case, on the ground of limitation also, the order of cognizance is not sustainable in the eye of law. 7. Accordingly, the order of cognizance dated 19.06.2000 passed by learned Judicial Magistrate, Muzaffarpur in Complaint Case No 1019 of 2000 is hereby set aside and the petition stands allowed. Patna High Court, (Rakesh Kumar,J) The 21st July,2010 Md.S.(NAFR