CRIMINAL MISCELLANEOUS No.36046 OF 2002 In the matter of an application under Section 482 of the Code of Criminal Procedure -------------- 1.SARJEET SINGH , Son of Late Sant Ram Singh, aged about 50 years, presently residing at B-93 P.C. Colony ,Kankarbagh,Patna-20, Police Station-Kankarbagh, District- Patna, Regional Marketing Manager, U.P. Seeds and Tarai Development Corporation Ltd. 2. Kanchan Singh, Son of Late Gurmukh Singh, resident of Chhata Chowk, Muzaffarpur, Police Station-Kaji Mohammadpur, District-Muzaffarpur, Assistant Marketing Manager U.P. Seed and Tarai Development Corporation Limited -- Petitioners Versus 1. THE STATE OF BIHAR 2. Ashok Kumar Chaudhary, Son of Late Chhotelal Chaudhary, resident of Mohalla- Akharaghat Road, Police Station-Town and District-Muzaffarpur --------- Opp.Parties. ----------- For the petitioners: S/Sri Ashwani Kr.Singh, Sr. Advocate Gajendra Pratap Singh, Advocate For the State: Smt. Indu Bala Pandey, A.P.P. -------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 18.7.2002 passed in Complaint Case No.695 of 2002, Trial No.856 of 2002 by Sri Ram Pratap Asthana, Judicial Magistrate, 1st Class, Muzaffarpur. By the said order, the learned Magistrate has taken cognizance of offence under Section 323 of the Indian Penal Code and summoned the petitioners. 2. Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate, Muzaffarpur, which was 2 numbered as Complaint Case No. 695 of 2002. In the complaint petition, it was alleged that the complainant was dealing as a retail dealer of seeds. It was alleged that petitioner nos. 1 and 2 , who were at the relevant Regional Marketing Manager , U.P. Seeds and Tarai Development Corporation Limited and Assistant Marketing Manager, U.P. Seeds and Tarai Development Corporation Limited respectively, approached the complainant with an offer to appoint him as Stockist/Distributor of seeds etc. U.P. Seeds and Tarai Development Corporation Limited (hereinafter referred to as “the Corporation”) with a condition that Opp.Party no.2 will have to pay Rs.50, 000/- to accused persons. The Complainant-Opp.Party no.2 was not inclined for such offer and thereafter, it was alleged that accused persons started threatening. The complainant even on telephone time without number was threatened and finally the two petitioners along with other accused persons visited the house of the complainant-Opp.Party no.2, abused him and also assaulted and by force the complainant was compelled to sign cheques and also put his signature on Non-Judicial Stamp Papers. It was alleged that cheques for an amount of Rs. 18, 00,000/- was taken forcibly by the accused persons and thereafter they fled away. The complainant had also mentioned number of cheques in his complaint petition. The complaint petition was filed for the offences under Sections 380,323,342, 384 and 504 of the Indian Penal Code. In the complaint petition, the date of occurrence was from 14.2.2002 to 22.3.2002. It was alleged that cheque and signature on Non-Judicial Stamp Paper were forcibly obtained on 22.3.2002. 3. After conducting enquiry, by an order dated 18.7.2002, the learned Magistrate took cognizance of offences under Section 323 of the 3 Indian Penal Code and summoned both the petitioners. 4. Aggrieved with the order dated 18.7.2002, i.e order of cognizance, the petitioners approached this Court by filing the present petition. On 1.9.2004, while issuing notice to Opp.Party no.2, it was directed that in the meanwhile, further proceeding in Complaint Case No.695 of 2002 pending in the court of Sri Rama Pratap Asthana, Judicial Magistrate, 1st Class, Muzaffarpur shall remain stayed. Subsequently on 18.10.2005 the case was admitted for hearing and it was directed that during the pendency of this application, interim order dated 1.9.2004 shall remain operative .The order of stay is still continuing. 5. On 27.08.2010 a supplementary affidavit was filed on behalf of the petitioners. However, a copy of the same was not served on the other side. It was intimated by Sri Ashwani Kumar Singh, learned Senior Counsel appearing on behalf of the petitioners that on the next date he will file receipt showing service of copy of the supplementary affidavit on the other side. Today, he has filed receipt showing service of copy of the Supplementary affidavit on the other side, which was served on learned counsel appearing on behalf of Opp.Party no.2 on 27.8.2010 itself. Despite Opp.Party no.2 had entered his appearance through his Advocate and on 27.8.2010 notice was also served on learned counsel for Opp.Party no.2 none has appeared on behalf of Opp.Party no.2 at the time of hearing and, as such, in absence of any representation of Opp.Party no.2, the matter was heard. 6. Sri Ashwani Kumar Singh, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of cognizance as well as initiation of proceeding in Complaint Case No.695 of 2002, Trial 4 No.856 of 2002 submits that the present complaint petition was filed in a designed manner with a view to create a defence in his favour . It was submitted that in course of business, the complainant was being delivered seeds on production of paying slip to show that the amount was paid in the Company’s Account. At subsequent stage it transpired that the complainant who was a dealer of the Corporation in connivance with the Stockist/Distributor, namely, Sri Ram Prashana Singh had committed fraud and by making forgery he lifted seeds and other materials for more than Rs. 12 ,00,000/- and odd. After noticing the fraud committed by the complainant and the Stockist, the Stockist was approached by the Corporation and the Stockist gave an undertaking that he will get the amount recovered from the dealer i.e. the complainant and he also gave a Cheque of Rs. 7,00,000/- in the name of the Corporation. The complainant had also issued four cheques on 22.3.2002 in the name of the Corporation and when all the cheques were presented before the Bank, all the cheques were returned with an endorsement that the amounts was insufficient in the account . Thereafter, as per the provisions contained in the Negotiable Instrument Act, notices were got issued to the complainant as well as the Stockist/Distributor, Ram Prashanna Singh. Even after the expiry of statutory period no payment was made by the accused persons, i.e. the complainant and Ram Prashanna Singh. Thereafter on 16.6.2002, a complaint was filed by petitioner no.1 since he was authorized to sign and file complaint on behalf of the Corporation. The said Complaint was numbered as Complaint Case No.916 of 2002. Learned Senior Counsel appearing on behalf of the petitioner has referred to Annexure-10 to the petition, which is at page 73-75. The complaint petition was filed for the 5 offences under Sections 420, 467,468,470,471/34 of the Indian Penal Code and under Section 138 of the N.I.Act. The complaint petition was referred to the police for its registration and investigation under Section 156 (3) of the Code of Criminal Procedure and thereafter an F.I.R. vide Kazi Mohammadpur P.S. Case No. 73 of 2002 was registered against the complainant and Ram Prashanna Singh for the offences as mentioned above. After registering the F.I.R. the police thoroughly investigated the same and finally a chargesheet was submitted in this case against the complainant and co-accused Ram Prashana Singh on 31.7.2002 for the offences under Sections 467,467 , 468 and 471 of the Indian Penal Code and under Section 138 of the N.I.Act. A copy of the chargesheet has been brought on record as Annexure- 11 to the present petition, which is at page 76 to 79. Sri Ashwani Kumar Singh learned Senior Counsel has pointedly placed the chargesheet. It was submitted that during the investigation, the police found that four cheques , which were issued by the complainant, were dishonoured when it was presented before the Bank and, as such, the police had submitted chargesheet. In view of the aforesaid facts, it was submitted that the present complaint petition was filed by Opp.Party no.2 with oblique motive as well as to created a defence in his favour and, as such, it was considered as malicious prosecution and the same is liable to be set aside. 7. I have heard Smt. Indu Bala Pandey, learned Addl.Public Prosecutor. 8. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on record. Prima facie after going through the contents/ allegations made in the complaint petition, 6 the Court is of the view that the allegations were not probable. It appears from Annexure-2 to the petition that Seeds and Tarai Development Corporation Limited was a Government Corporation of the Government of Uttar Pradesh and petitioner no.1 was posted as Regional Marketing Manager and petitioner no.2 was Assistant Marketing Manager. From the Chargesheet, which was submitted in Kazi Mohammadpur P.S.Case No.73 of 2002, it is evident that cheques , which were issued by the complainant, were in the name of the Corporation and the same was returned as dishonoured when it was presented before the Bank. It was not expected that the Officers of the Corporation, in such a manner, would have visited the house of the complainant and abused and forcibly took the cheques, which have been proved false by a statutory investigation conducted in Kazi Mohammadpur P.S. Case No.73 of 2002. So far the allegation of obtaining cheques etc. are concerned that was also not accepted by the learned Magistrate after conducting enquiry. In the present Complaint, i.e. in Complaint Case No.695 of 2002 , the learned Magistrate has rightly noticed that though in the complaint petition, the complainant had asserted that after the occurrence he gave a written information to the police, but when question was asked by the court at the time of recording the statements of the complainant on S.A. , the complainant had stated that he was not having any evidence regarding giving information either to the police or the Bank.It was also accepted by the complainant that he had not intimated the Department. In natural course, had the accused persons would have taken the cheques forcibly from the complainant, the Complainant would have immediately informed the Bank for stopping the payment. This shows that the complaint was filed falsely and maliciously. 7 9. In view of the aforesaid facts and circumstances, the Court is satisfied that the prosecution has been initiated maliciously and with oblique motive. The Court is of the opinion that it is a fit case for exercising inherent jurisdiction in favour of the petitioners. Accordingly, the order dated 18.7.2002 passed by the learned Judicial Magistrate, 1st Class, Muzaffarpur in Complaint Case No.695 of 2002 as well as entire proceeding in the said complaint petition are set aside and the petition stands allowed. Patna High Court,Patna Dated : the 30th August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)