IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32097 of 2005 1.RAM PRIT LAL SON OF LATE MEWA LAL 2.RAVINDRA @ RAVINDRA Lal SON OF SHRI RAM PRIT LAL 3.CHANDRA KISHORE THAKUR SON OF LATE SAHDEO THAKUR. Versus 1.STATE OF BIHAR 2.TAJ MOHAMMAD SON OF VAKIL AHMAD ----------- FOR THE PETITIONER:MR.ASHWANI KUMAR SINGH,SR.ADVOCATE. FOR THE STATE :MRS.INDU BALA PANDE Y, A.aP.P. 13 16.2.2010 Heard the learned counsel for the petitioners and the State. No body appears on behalf of the O.P.No.2 despite valid service of notice. The petitioner has challenged the order dated 3.4.2000 passed by the C.J.M., Siwan, in Complaint Case No.C-134 of 2000 / Tr. No.145/05 whereby cognizance was taken under sections 406,420 of the I.P.C. A complaint was filed on behalf of Taj Mohammad to the effect that two brothers of the complainant were sent abroad by the accused persons. The complainant intended to go abroad for which he procured the passport. The allegation is that the accused persons were sending some persons abroad. The complainant had trust upon them so, he paid some amount to the accused persons when they went to his house. It was assured that the complainant would get Rs.25,000/- per month salary. Further allegation was that on 2.5.1999 all the accused persons went to the house of the complainant and asked for the money for employment. The complainant took loan and mortgaged some jewellery and 2 managed Rs.70,000/- which was given to the accused persons. Further request of the accused persons was for arranging Rs.30,000/- and it was assured that the complainant had to go abroad by 15.7.1999 and so that Rs.30,000/- was to be paid prior to that. On 15th July,1999 the complainant went to Patna and the accused persons told that the job had been arranged and the complainant had to work as clerk on monthly Rs.35,000/- and the Visa was expected within a day or two days. Thereafter the complainant requested several times for Visa and reminded them on 26.1.2000. The accused persons came enraged upon the complainant and refused to return the money. So, he suspected that they had cheated him. Then he filed a complaint under sections 406 and 420 of the I.P.C. In support of the complaint petition the complainant was examined on S.A. As many as four prosecution witnesses were examined. The C.J.M., Siwan, took cognizance. The grievance of the petitioners is that the complaint was filed by fictitious person and the ground has not been explained. No offence at all is made out. The petitioners are believing that the complaint has been filed by fictitious person. On their prayer this Court had ordered that the notice be issued to O.P.No.2. By order dated 20.2.2006 notice was issued to O.P.no.2. Despite all steps he did not appear on 14.11.2006 this Court directed that the Presiding Officer of the court below will inform the O.P.No.2, Taj Mohammad, through his lawyer to 3 appear before this Court. Further proceeding was stayed by this Court. Again O.P.no.2 did not appear. Then this Court by order dated 30.5.2007 again directed the concerned trial court where the matter is pending, to ensure appearance of O.P.no.2, who figured there as complainant of complaint case no.134 of 2000, Tr.No.145/05 by personal indulgence of the learned counsel representing O.P.no.2 before him. That effort also yielded no fruit and so the notice was deemed to have been validly served on 19.5.2008. On the record there is a report of the J.M. Ist Class, Siwan, that complaint has yet not appeared in the complaint case no.134 of 2000 / Tr.No.145/05/ Tr.No.820/08 despite all efforts. L.C. R. has come . The complainant has not appeared before the trial court since the year,2000. On the basis of the aforesaid conduct of the complainant learned counsel for the petitioners argued that neither the allegation against the petitioners is true nor O.P. no.2 as a complainant exists and that is why despite all sorts of effort by the trial court having been exhausted , the complainant has not come to this Court and for that reason he is not attending the trial court. It has also been submitted that there shall be no purpose, if the accused persons are forced to face the entire trial. Accused persons will have to be acquitted and the trial will have to be disposed of on account of non-taking any 4 step on behalf of the complainant. I have heard the submission of the learned counsel for the petitioners and perused the entire records. It appears that all efforts of the court below has become futile and O.P. no.2 has not appeared to oppose this case. Continued lack of the complainant before the court below shows that he is not ready to support the prosecution. Thus, in my view, order taking cognizance has to be set aside. Accordingly, the impugned order dated 3.4.2000 is set aside. This petition is allowed. AnilKr.Sinha (Shyam Kishore Sharma,J.)