IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44384 of 2007 Salahuddin Siddiqui @ Salauddin Siddiqui, Son of late Makbul Siddiqui, Resident of Village Athersua, P.S. & O.P. Sahayak Sarai, Siwan Muffasil, District Siwan. -------- Petitioner Versus 1. State of Bihar. 2. Md. Negam Ahmad @ Nayazam Ahmad, Son of Late Samsul Haque, Resident of Village Barharia, P.S. Barharia, District Siwan. --------- Opposite Parties ----------- 4 19.03.2010 Heard learned counsel for the petitioner and counsel for the State. Despite service of notice on the opposite party no.2, no one has appeared on his behalf. Learned counsel for the petitioner while assailing the order dated 16.4.2007 taking cognizance for offence under Section 406 of the Indian Penal Code submits that barring oral assertion of the complainant with regard to payment of Rs. 39,000/- for purchase of land, there is no written instrument to show any such payment. He would accordingly submit that this case was at best a case of civil dispute for which a suit of specific performance could have been maintained by the complainant. True it is that the complaint has a look of civil dispute, but, nonetheless, there is a direct allegation of advancing Rs. 2 39,000/- which on being taken from the complainant has been refused to be returned by the petitioner which is sufficient to constitute the offence under Section 406 I.P.C. The petitioner only disputes such payment and therefore, the recourse taken by the petitioner for getting the order of cognizance set aside is itself premature because such defence of the petitioner can only be looked into at the stage of trial. The impugned order taking cognizance infact cannot be interfered on such defence plea of the petitioner. That being so, this application is wholly misconceived and is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)